Joan SCHOEFF, etc., Petitioner, v. R.J. REYNOLDS TOBACCO COMPANY, Respondent, 232 So. 3d 294

QUINCE, J. Joan Schoeff -seeks review of the decision of the Fourth District Court of Appeal in R.J. Reynolds Tobacco Co. v. Schoeff, 178 So.3d 487 (Fla. 4th DCA 2015), on the ground that it expressly and directly conflicts -with the First District Court of Appeal’s decision in R.J. Reynolds Tobacco Co. v. Sury, 118 So.3d 849 (Fla. 1st DCA 2013), on the applicability of the comparative fault statute to Engle progeny cases. We have jurisdiction. See art. Y, § 3(b)(3), Fla. Const.

We find that the comparative fault statute does not apply to Engle progeny cases in which the jury finds for the plaintiff on the intentional torts such that the compensatory damage awards in those cases are not subject to reduction. For the reasons that follow, we quash the Fourth District’s decision on both the compensatory and punitive damages issues below and approve the First District’s decision to the extent that it did not reduce compensatory damages under the comparative fault statute. FACTS AND BACKGROUND In 1994, the Engle class action was filed against tobacco companies including R.J.

Reynolds Tobacco Company (RJR). The class included all Florida smokers who had contracted diseases caused by smoking. The Engle class raised claims including strict liability, negligence, fraudulent concealment, and conspiracy. Engle v. Liggett Grp., Inc., 945 So.2d 1246, 1255-57, 1257 n.4 (Fla. 2006). In the first phase of the trial, the jury determined that the tobacco companies were negligent, marketed defective cigarettes, and conspired to conceal the risks of smoking. Id. at 1277.

In the second phase of the trial, the jury found the defendants were liable to three class representatives and awarded the class a total of $145 billion in punitive damages. Id. at 1257. The defendants appealed. Id. at 1258. On appeal, the Third District decertified the class and found the punitive awards excessive. Liggett Grp. Inc. v. Engle, 853 So.2d 434, 442-58 (Fla. 3d DCA 2003). This Court agreed that ■ the punitive awards were excessive and that continued class treatment was not feasible “because individualized issues such as ... comparative fault ... predominate.” Engle, 945 So.2d at 1268.

This Court also authorized members of the decertified class to file individual cases and held that findings from the first phase of trial including defect, negligence, concealment, and conspiracy would have res judicata effect in their individual cases. Id. at 1269-70. The district court below described the proceedings at trial in this case: R.J. Reynolds Tobacco Company (“RJR”) appeals the final judgment entered in favor of Joan Schoeff Spolzino as Representative of the estate of her deceased husband, James Schoeff (“Plaintiff’). RJR raises four issues on appeal.

First, it contends that the trial court erred in denying its motion for a directed verdict because Plaintiff failed to prove addiction causation. Second, it asserts that certain comments made by Plaintiffs counsel during closing necessitate a new trial. Third, it argues that the court erred in denying its motion to remit the jury’s compensatory and punitive damages awards. Fourth, it argues that the court’s application of the Engle findings violated its due process rights. Plaintiff cross-appeals, arguing that the court erroneously reduced the jury’s compensatory damages award based on Mr.

Schoeffs comparative fault. We reverse and remand for remittitur of the punitive portion of the judgment, and affirm in all other respects. Background

a) Pleadings The instant case is an Engle progeny case. See Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006). Plaintiff filed suit against RJR asserting membership in the Engle class because her husband died from lung cancer “caused by his addiction to cigarettes.” In her suit, Plaintiff alleged causes of action for strict liability, fraud by concealment, conspiracy to commit fraud by concealment, negligence, and gross negligence. She also admitted that Mr.

Schoeff shared some fault for his smoking-related injuries and represented that she would “seek apportionment of fault, pursuant to the principles of comparative fault, on the counts for negligence and strict liability; however not with respect to the counts constituting intentional torts as pled in this action.”

b) The Trial The case proceeded to trial in two phases in the manner we approved in R.J. Reynolds Tobacco Co. v. Brown, 70 So.3d 707, 714 (Fla. 4th DCA 2011). In the first phase, the jury was asked to: 1) determine whether Mr. Schoeff was a1 member of the Engle class; 2) if so, whether RJR’s conduct was the legal cause of his death; and 3) determine damages. The jury was also asked to determine whether Plaintiff was entitled to punitive damages if it' found against RJR on Plaintiff’s claims for fraudulent concealment or conspiracy to fraudulently conceal.

After considering the evidénee, the jury returned its verdict, finding that Mr. Schoeff was addicted to nicotine, his addiction was a legal cause of his lung cancer and death; and that the negligence of RJR as well as the defective and unreasonably dangerous cigarettes manufactured by RJR were a legal cause of Mr. Schoeffs lung cancer and death. It allocated Mr. Schoeffs comparative fault for his injuries at 25%.

Additionally, the jury found that Mr; Schoeff detrimentally relied on statements made by RJR which concealed or omitted material information, and that such reliance was a legal cause of his cancer and death. Based on these findings, the jury awarded Plaintiff $10.5 million in compensatory damages and found that punitive damages were warranted. The second phase of the trial concerned the proper amount of punitive damages. During closing arguments in this phase, Plaintiff’s counsel asked the jury to award Plaintiff $25 million in punitive damages and no more.

Spécifi-cally, counsel stated: “you may think that’s too low, but we urge you not to go above that. Please do not go above 25 million. Do not. She doesn’t want that. Do not go above that.” Despite Plaintiffs urging, the jury returned a verdict assessing $30 million in punitive damages against RJR.

c) Post-Trial Motions and Rulings Following the trial, RJR filed- a motion asking the court to reduce the compensatory damages award to reflect the comparative fault assigned to . Mr. Schoeff by the jury. Plaintiff filed a response in. opposition arguing that the comparative fault statute should not apply since the jury found RJR committed the intentional tort of fraudulent concealment. Additionally, RJR moved for a new trial on evidentiary grounds.

In the alternative, RJR moved for remittitur of both the compensatory and' punitive damages awards, arguing that they were both excessive and not supported by the evidence. Considering the above pleadings, the trial court granted RJR’s motion to enter judgment consistent with the jury’s finding on comparative fault, denied RJR’s motion for a new trial, and denied RJR’s motion to remit the compensatory and punitive damages awards.

In granting RJR’s motion to reduce the jury’s compensatory award by Mr.- Schoeffs comparative fault, the court ruled that Plaintiff waived her argument regarding comparative fault based on representations counsel made to the jury. Alternatively, the court ruled that even if Plaintiff had not waived her argument, the intentional tort exception to the comparative fault statute would not apply as Plaintiffs suit was a products liability suit at its core.

In denying RJR’s motion to remit the punitive damages award, the court recognized that there was no logical basis for the jury to award a larger amount than Plaintiff requested, but found that the jury’s award was “NOT infected by bias, prejudice, passion or any other sentiment against Defendant.” In accordance with its above rulings, the court entered final judgment awarding Plaintiff $7,875,000 in compensatory damages and $30 million in punitive damages, for a total of $37,875,000. This ■•appeal follows. Schoeff, 178 So.3d at 488-90 (footnotes omitted).

The Fourth District affirmed the trial court’s denial of RJR’s motion for a directed verdict, denial, of the motion for a new trial, grant of RJR’s motion to remit the jury’s compensatory damages, and application of Engle findings to Mrs. Schoeff s casé. Id. at 490. ' The Fourth District also concluded that the $30 million punitive damages award was unconstitutionally excessive in light of the $10.5 million compensatory damages. Id. at 491. The decision further held that even if the. punitive damages were not unconstitutional, remittitur was necessary under

section 768.74(5)(e), Florida Statutes (2012), because Mrs. Schoeff had begged the jury not to award more than $25 million and a larger award “could [not] be adduced in a logical manner.” Id. at 491-92 (quoting •§ 768.74(5)(e)). Finally, the Fourth District majority determined that the proper remedy for the punitive damages issue would be for the trial court to grant RJR’s motion for remittitur or hold a new trial on punitive damages if RJR did not agree to the amount of the remittitur. Id. at 492. Next, the district court rejected Mrs.

Schoeff s cross-appeal regarding the trial court’s reduction of compensatory damages, finding that she had waived the intentional tort exception by arguing comparative fault to the jury because no reasonable jury could “possibly understand that its comparative fault determination was going to have no effect whatsoever on its compensatory damages award.” Id. at 494.

Reviewing the trial court’s decision de novo, the majority also found that the comparative fault statute applies to Engle progeny cases in which the jury finds for the plaintiff on the intentional tort claims because Engle progeny cases are “grounded in negligence.” Id at 495-96. The majority acknowledged that its de novo standard of review created conflict with the First District’s review for abuse of discretion in Sury.

See id. (citing Sury, 118 So.3d 849), The First District held in Sury that the comparative fault statute does not apply to Engle progeny cases in which the jury finds for the plaintiff on intentional tort claims because they sound in intentional tort rather than negligence. Sury, 118 So.3d at 852. We accepted jurisdiction. We first consider issues related to compensatory damages: the comparative fault statute, its intentional tort exception, and whether Mrs. Schoeff waived the intentional tort exception by arguing comparative fault of the smoker to the jury.

We next consider- whether the punitive damages were unconstitutionally excessive and whether the Fourth- District properly found that the trial court abused its discretion in denying RJR’s motion for remitti-tur on the punitive award. COMPENSATORY DAMAGES Whether the comparative fault statute applies to Mrs. Schoeffs ease requires this Court to' interpret the statute. Statutory

interpretation is a pure ‘question of law reviewed de novo. See Polite v. State. 973 So.2d 1107, 1111 (Fla. 2007). We review for abuse of discretion the trial court’s finding that Mrs. Schoeffs trial conduct prevented her from asserting the intentional tort exception. See Schoeff, 178 So.3d at 492 (quoting R.J. Reynolds Tobacco Co. v. Hiott, 129 So.3d 473, 475 (Fla. 1st DCA 2014)); Sury, 118 So.3d at 851. I. Comparative Fault Statute Before analyzing its plain meaning, this Court must determine which version of the comparative fault statute controls. The Fourth District held, and Mrs.

Schoeff agrees, that the applicable statute is the 1992 version because it was in effect when the cause of action accrued in 1994. Schoeff, 178 So.3d at 492 n.3 (citing Basel v. McFarland & Sons, Inc., 815 So.2d 687, 691-96 (Fla. 5th DCA 2002)). RJR argues that the proper version of the statute is the 2011 version because the Legislature provided the following: This act is remedial in nature and applies retroactively. The Legislature finds that the retroactive application of this act ■ does not unconstitutionally impair vested rights.

Rather, the law affects only remedies, permitting recovery against all tortfeasors while lessening the ultimate liability of each consistent with this state’s statutory comparative fault system, codified in s. 768.81, Florida Statutes. Ch. 2011-215, § 3, Laws of Fla. (emphasis added). The 2011 version became effective June 23, 2011. The Fourth District improperly relied upon Basel to- find that the 1994 version was the proper version of the statute. Bar sel held that the 1999 version of the statute was not retroactive because it included •no explicit language regarding retroactivity. Basel, 815 So.2d at 691-96.

The 2011 amendment explicitly provided for its retroactive application. The 2011 statute controls. A, Plain Meaning of the Comparative Fault Statute The goal of statutory

interpretation is to identify the Legislature’s intent. Crews v. State, 183 So.3d 329, 332 (Fla. 2015). To do so, this Court first consults the plain meaning of the statute’s text. W. Fla. Reg'l Med. Ctr., Inc. v. See, 79 So.3d 1, 9 (Fla. 2012). “When the statute is clear and unambiguous,” we use the plain language of the statute and avoid rules of statutory construction to determine the Legislature’s intent. Daniels v. Fla. Dept. of Health, 898 So.2d 61, 64 (Fla. 2005); see also QBE Ins. Corp. v. Chalfonte Condo. Apt. Ass’n, 94 So.3d 541 (Fla. 2012).

The comparative fault statute reduces 'defendants’ liability by the percentage of fáiilt of other culpable parties. § 768.81, Fla. Stat. (2011). The statute provides, “In a negligence action, contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and noneconomic damages for an injury attributable to the claimant’s contributory fault, but does not bar recovery.” §’ 768.81(2), Fla.

Stat. (2011). “Negligence action” is defined as “without limitation, a civil action for damages based upon a theory of negligence, strict liability, products liability, [or] professional malpractice.” Id. § 768.81(l)(c). The intentional tort exception is codified in subsection (4) of the statute: “Applicability. — This

section does not apply ... to any action based upon an intentional tort ...” Id. § 768.81(4). The plain language of the comparative fault statute is unequivocal: the comparative fault statute applies to an enumerated, but not exhaustive, list of negligence claims and “does not apply ... to any action based upon ah intentional tort.” Id. This creates confusion for damages in Engle progeny cases because the same injuries — a smoker’s illness or death and survivors’ damages — are the result of both negligence and intentional torts.

Generally, a defendant may not be required to pay twice for the same element of damages. See Dobbs v. Griffith, 70 So.2d 317, 318 (Fla. 1954); Besett v. Basnett, 437 So.2d 172 (Fla. 2d DCA 1983). Compensatory damages in Engle progeny cases cannot be allocated among the intentional tort and simple negligence claims without violating this rule against double damages. Therefore, if the comparative fault statute is applied to compensatory damages in Engle progeny cases, any reduction necessarily affects damages arising from “action[s] based upon an intentional tort” in violation of the intentional tort exception,

section 768.81(4), Florida Statutes. RJR asks this Court to find that while individual intentional tort claims are exempted under subsection (4), comparative fault applies to entire cases that include both negligence and intentional tort claims because the list of claims which may comprise “negligence actions” is not limited to those enumerated negligence claims. We reject such a reading.

If the comparative fault statute is applied to an Engle proger ny case in which the jury finds for the plaintiff on both negligence and intentional tort claims, any reduction is necessarily applied to damages from “action[s] básed upon an intentional tort” in derogation of the intentional tort exception of subsection (4). RJR further contends that whether a case is a “negligence action” hinges on “[t]he substance of an action, not eoncluso-ry terms used by a party.” § 768.81(l)(c), Fla. Stat. (2011).

RJR argues the comparative fault statute applies to Engle progeny cases in which the jury finds for the.plaintiff on intentional tort claims because the “substance” of the Engle progeny case is negligence. This

interpretation disregards the fact that all Engle progeny defendants have already been found guilty of the intentional torts. See Engle, 945 So.2d at 1277. The jury in Engle progeny cases is only charged with determining whether those intentional torts were a cause of the individual plaintiffs injury. Because reasonable minds may disagree, we turn to canons of statutory construction and legislative history for further guidance. B. Canons of Construction and Legislative History Where the statutory language is unclear or ambiguous, this Court applies rules. of statutory construction to determine legislative intent.

Polite, 973 So.2d at 1111. A subsection must be read in the context of the whole. See Fla. Dep’t of Envtl. Prot. v. ContractPoint Fla. Parks, LLC, 986 So.2d 1260, 1264-65 (Fla. 2008). We endeavor to give effect to every word of a statute so that no word is construed as “mere surplusage.” Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 198-99 (Fla. 2007). The 2011 version of the statute, in its entirety, provides the following:

(1) DEFINITIONS. — As used in this section, the term: (a) “Accident” means the events and actions that relate to the incident as well as those events and actions that relate to the alleged. defect or injuries, including enhanced injuries. ■ (b) “Economic damages” means past lost income and future lost income reduced to present value; medical and funeral expenses; lost support and services; replacement value of lost personal property; loss of appraised fair.market value of real property; costs of construction repairs, including labor, overhead, and profit; and any other economic loss that would not have occurred but for the injury giving rise to the cause of action. (c) “Negligence action” means, without limitation, a civil action for damages based upon a theory of negligence, strict liability, products liability, professional malpractice whether couched in terms of contract or tort, or breach of warranty and like theories.

The substance of an action, not conclusory terms used by a party, determines whether an action is a negligence action. (d) “Products liability action” means a civil action based upon a theory of strict liability, negligence, "breach of warranty, nuisance, or similar theories for damages caused by the manufacture, construction, design, formulation, installation, preparation, or assembly of a product. The term includes an action alleging that injuries received by a claimant in an accident were greater than the injuries the claimant would have received but for a deféctive product.

The substance of an action, not the concluso-ry terms used by a party, determines whether an action .is a products liability action.

(2) EFFECT OF CONTRIBUTORY FAULT. — In a . negligence action, contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and non-economic damages for an injury attributable to the claimant’s contributory fault, but does not bar recovery.

(3) APPORTIONMENT OF DAMAGES. — In a negligence action, the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability. (a) 1.

In order to allocate any or all fault to a nonparty,- a defendant must affirmatively plead the fault of a nonparty and, absent a showing of good cause, identify the nonparty, if known, or describe the nonparty as specifically as practicable, either by motion or in the initial responsive pleading when defenses áre first presented, subject to amendment any time before trial in accordance with the Florida Rules of Civil Procedure. 2.

In order to allocate any or all fault to a nonparty and include the named or unnamed nonparty on the verdict form for purposes of apportioning damages, a defendant must prove at trial, by a preponderance of the evidence, the fault of the nonparty in causing the plaintiffs injuries. (

b) In a products'liability action alleging that injuries received by a claimant in an accident were enhanced by a defective product, the trier of fact shall consider the fault of all persons who contributed to the accident when apportioning fault between or among them. The jury shall be appropriately instructed by the trial judge on the apportionment of fault in products liability actions' where there are allegations that the injuries received by the claimant in an accident were enhanced by a defective product. The rules of evidence apply to these actions. (4)APPLICABILITY. — This

section does not apply to any action brought by any person to recover actual economic damages resulting from pollution, to any action based upon an intentional tort, or to any cause of action as to which application of the doctrine of joint and several liability is specifically provided by

chapter 403,

chapter 498,

chapter 517,

chapter 542, or

chapter 895.

(5) MEDICAL MALPRACTICE.— Notwithstanding anything in law to the contrary, in an action for damages for personal injury or wrongful death arising out of medical malpractice, whether in contract or tort, if an apportionment of damages pursuant to this

section is attributed to a teaching hospital as defined in s. 408.07, the court shall enter judgment against the teaching hospital on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability. § 768.81, Fla. Stat. (2011). One canon of construction requires this Court to presume that the Legislature intended • the words it chose to include in the statute. Under the canon of construction expressio unius est exclusio alterius, we conclude that the Legislature purposefully excluded items not included in a list. Thayer v. State, 335 So.2d 815, 817 (Fla. 1976).

The Legislature enumerated, “without limitation,” negligence claims which may be considered part of a “negligence action” and did not enumerate any intentional torts. § 768.81(l)(c), Fla. Stat. Expressio unius est exclusio alterius encourages this omission to be interpreted as purposeful. In fact, subsection (4) excludes intentional torts from coverage under the comparative fault statute and does npt limit the exclusion to cases based on intentional tort claims alone. -The nature of the statute is also instructive in this case. The comparative fault statute is a derogation of the common law.

Statutes that alter the common law are narrowly construed. See Allstate Ins. Co. v. Rudnick, 761 So.2d 289, 293 (Fla. 2000). This Court presumes that when-the Legislature alters common law by statute, the alteration is not intended beyond what was clearly specified in the statute. See id.; Ady v. Am. Honda Fin. Corp., 675 So.2d 577, 581 (Fla. 1996). At common law, intentional torts are not reduced by comparative fault. See Restatement (Third) of Torts: Apportionment of Liab. § 1 cmt. c (Am. Law Inst. 2000) (“Traditionally, a plaintiffs negligence was not a defense to intentional torts.”).

The Legislature explicitly provided that a plaintiffs negligence -may not serve as a comparative defense to an intentional tort in subsection (4), Allowing RJR to reduce its liability on intentional torts by Mr. Schoeff s comparative fault is a broad

interpretation which violates the canon of construction for derogations of the common law. These tools of statutory

interpretation favor a narrow

interpretation of the comparative fault statute. Therefore, the comparative fault statute does not apply to Engle progeny cases in which the jury finds for the plaintiff on the intentional tort claims. Finally, we address caselaw concerning the comparative fault statute which is inapplicable to this and other Engle progeny cases. C, Comparative Fault Caselaw The Fourth ' District below relied on Merrill Crossings Associates v. McDonald, 705 So.2d 560 (Fla. 1997), to support its finding that the comparative fault’ statute applies to Engle progeny cases because they are based on negligent conduct.

Schoeff, 178 So.3d at 495. In Merrill Crossings, we found that the comparative fault statute did not apply to a negligence action against a property owner because the action was based on an intentional tort — the shooting of a patron on the premises that was committed by' a nonparty. Merrill Crossings, 705 So.2d at 562-63. The First and Second District Courts ,of Appeal have relied on- this same reasoning to find that the comparative fault statute does not apply to Engle progeny cases because they are based on intentional conduct. See Sury, 118 So.3d at 852; Philip Morris USA v.

Boatright, 217 So.3d 166 (Fla. 2d DCA 2017). We find the Fourth District’s reliance on Merrill Crossings in Engle progeny cases unfounded .because the situations are distinguishable. The issue in this and other Engle progeny cases is not whether a single negligence claim against the named defendants is based on the foreseeable intentional conduct of a nonparty as in Merrill Crossings. The question is whether an award resulting from both negligence and intentional torts may be reduced by the plaintiffs comparative fault. We find the situation in Mazzilli v.

Doud, 485 So.2d 477 (Fla. 3d DCA 1986), more applicable to Engle progeny eases. In Mazzilli, the Third District refused to reduce the plaintiffs award by the percentage of the plaintiffs fault because the jury found for the plaintiff on an intentional tort count. Id. Similarly, when a jury finds for an Engle progeny plaintiff on intentional tort claims, the plaintiffs award may not be reduced by comparative fault. See Mazzilli, 485 So.2d at 480. Because the jury found for Mrs.

Schoeff on the intentional tort claims in this case, her compensatory award may not be reduced unless she waived-the. intentional tort exception. II. Waiver The Fourth District concluded that the comparative fault statute applied to Mrs. Schoeff because she waived the intentional tort exception by her conduct at trial. We review the trial court’s finding of waiver for abuse of discretion. See Sury, 118 So.3d at 851. A party may waive a legal right, “whether secured by contract, conferred by statute, or guaranteed by the Constitution.” DK Arena, Inc. v.

EB Acquisitions I, LLC, 112 So.3d 85, 97 (Fla. 2013) (quoting Gilman v. Butzloff, 155 Fla. 888, 22 So.2d 263, 265 (1945)). Waiver of a right can be accomplished by “taking action inconsistent with that right” during trial. O’Keefe Architects, Inc. v. CEP Constr. Partners, Ltd., 944 So.2d 181, 185 n.4 (Fla. 2006). Waiver of the intentional tort exception has been considered in many Engle progeny cases. In finding 'Waiver, the Fourth District relied upon R.J. Reynolds Tobacco Co. v. Hiott, 129 So.3d 473, 475 (Fla. 1st DCA 2014), and Philip Morris USA, Inc. v. Green, 175 So.3d 312 (Fla. 5th DCA 2015).

In Hiott, the First District held that the trial court1 did hot abuse its discretion m reducing an Engle progeny plaintiffs award because she had “encouraged the jury, from voir dire through closing argument, that she accepted that her deceased husband, was partially at fault for his smoking-related illness and death.” Hiott, 129 So.3d at 481.

The jury in Hiott had been instructed not to reduce its compensatory award because of the fault allocated to the smoker because “[t]he Court will enter a judgment based on your verdict and will reduce the total amount .of damages by the percentage of fault which you charge to [the smoker].” Id. (emphasis removed). The plaintiff “failed to inform the jury that she -intended to reserve her right to assert the inapplicability of comparative fault to any of her claims.” Id. at 480-81.

The First District concluded that the jury might have reached a different verdict on damages had it known that the tobacco company would bear the full amount of damages, contrary to the jury instructions. Id. at 481-82. Similarly, in Green, the Fifth District found the comparative fault statute applicable where the plaintiffs made similar arguments to the jury. Green, 175 So.3d at 315-16. In contrast, the First District found in Sury that the trial court did not abuse its discretion in finding that the Engle progeny plaintiff did not waive the intentional tort exception under different facts.

Sury, 118 So.3d at 851. The plaintiffs complaint in Sury “clearly and specifically sought ‘potential apportionment of fault and damages on all counts other than those alleging intentional torts.’ ” Id. The Sury plaintiff “never argued to the jury or the court that the damages for his father’s terminal illness should be reduced by his portion of fault.” Id. The defendants also “agreed to the verdict form which listed each cause of action, including the intentional torts, and requested the jury to indicate whether the defendants had committed each individual tort or not.” Id. Like the plaintiff in Sury, Mrs.

Schoeff s complaint stated that she would seek apportionment based on comparative fault “on the counts for negligence and strict liability; however not with respect to the counts constituting intentional torts as pled in this action.” Schoeff, 178 So.3d at 489. The verdict form also listed the intentional torts after the interrogative about apportionment, which immediately followed the negligence claims. The Fourth District below did not consider that, as in Sury, the defendants in this casé agreed to the verdict form which asked the jury to determine whether Mr.

Schoeffs smoking was a result of each of the negligent and intentional tort offenses the Engle jury found RJR to have committed. We disagree with the Fifth District in Green and the First District in Hiott to the extent they held that the intentional tort exception is waived when an Engle progeny plaintiff argues comparative fault on the negligence counts, and we reject the Fourth District majority’s theory of waiver below. Based on the foregoing, we find that the trial court abused its discretion in finding that Mrs. Schoeff waived the intentional tort exception.

PUNITIVE DAMAGES Lastly, the Fourth District concluded that the punitive damages award was unconstitutionally excessive. “[A] trial court’s determination as to whether a punitive damage award exceeds the boundaries of due process as guaranteed by the United States Constitution is reviewed by a court under a de novo standard.” Engle, 945 So.2d at 1263 (citing Cooper Indus. Inc., v. Leatherman Tool Group, Inc., 532 U.S. 424, 436, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001)).

In contrast, a trial court’s determination of whether a damage award is excessive, requiring a remittitur or a new trial under Florida law, is reviewed for abuse of discretion. Engle, 945 So.2d at 1263 (citing St. John v. Coisman, 799 So.2d 1110, 1114 (Fla. 5th DCA 2001)). We first evaluate the constitutionality of the jury’s punitive award before turning to the trial court’s denial of remit-titur. I.

Constitutionality of Punitive Damages The United States Supreme Court requires that review of a punitive damages award include consideration of three guideposts to determine whether the award is unconstitutionally excessive: (1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or. imposed in comparable cases. Id. at 1264 (quoting State Farm Mutual Auto. Ins. Co. v.

Campbell, 538 U.S. 408, 418, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003)). Reprehensibility is “the most important indicium of the reasonableness of a punitive damages award.” BMW of N. Am., Inc. v. Gore. 517 U.S. 559, 575, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). A court must give substantial deference to the Legislature’s comparable civil penalties when considering whether damages are excessive. Id. at 587, 116 S.Ct. 1589.

This Court has held that “[w]hen compensatory-damages are substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee.” Engle, 945 So.2d at 1265 (quoting Campbell, 538 U.S. at 425, 123 S.Ct. 1513). We examine each factor. A. Reprehensibility The reprehensibility component of our analysis is supported by the fact that RJR increased the addictive qualities of cigarettes, concealed their health defects, and widely marketed their defective product for profit. Id. at 1277.

The harm in this case was both physical and economic, done with reckless disregard for the health or safety of others, involved repeated actions, and was the result of intentional deceit. These factors lead to the conclusion that this conduct is among the most reprehensible. See Campbell, 538 U.S. at 419, 123 S.Ct. 1513. B. Relationship between Actual or Potential Harm and Punitive Damages To evaluate the relationship between damages and harm, the punitive award is compared to the actual or potential harm suffered, not actual harm alone. See Philip Morris USA v.

Williams, 549 U.S. 346, 354, 127 S.Ct. 1057, 166 L.Ed.2d 940 (2007). RJR contends that the punitive damages must be considered alongside the total punishment RJR “has or will probably receive from other sources,” including “past and future liability in [similar] cases.” Owens-Corning Fiberglas Corp. v. Ballard, 749 So.2d 483, 485, 488 (Fla. 1999). In addition, RJR contends that federal due process requires the same broad inspection of RJR’s liability. See Campbell, 538 U.S. at 423, 123 S.Ct. 1513.

RJR also notes that we previously found the $145 billion award for the Engle class excessive in Engle, 853 So.2d at 457 n.29, and that RJR’s share of that award was $36 billion, and asks this Court to consider that RJR is a defendant in most Engle progeny cases. RJR argues that if 1200 Engle progeny cases result in $30 million awards like the one in this case, the cumulative award would be excessive under Engle. While that may be true, RJR has not demonstrated that it is the defendant in 1200 Florida Engle progeny cases - or that $30 million punitive damages awards are common in Engle progeny cases.

In fact, the record demonstrates that a $30 million award would be among the highest Engle progeny punitive damages awards in Florida. The single award of $30 million in this case is less than one one-hundredth of a percent of RJR’s share of the award we found excessive. While among the highest Engle progeny punitive awards in Florida, the punitive award in this case falls within a 3-to-l ratio when compared to'the compensatory award. Schoeff, 178 So.3d at 491-92 (comparing R.J. Reynolds Tobacco Co. v.

Buonomo, 138 So.3d 1049 (Fla. 4th DCA 2013) ($25 million punitive yersus $5.235 million compensatory damages); and R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060 (Fla. 1st DCA 2010) ($25 million punitive damages versus $3.3 million compensatory damages); with R.J. Reynolds Tobacco Co. v. Townsend, 90 So.3d 307, 313 (Fla. 1st DCA 2012) ($40.8 million punitive damages found unconstitutionally excessive compared to $10.8 million compensatory award)). Given the ratios in other cases, the ratio of punitive to compensatory damages in this case is not unconstitutionally excessive. C.

Comparison of Punitive Damages and Civil Penalties in Comparable Cases ■ ■ r In comparable cases, the civil penalty is often three times the compensatory award. See, e.g„ § 708.78(l)(a)l., Fla. Stat. (2011). The unreduced compensatory award in this case is roughly one third .the jury’s punitive damages- The trial court found that the $30 million award was not unconstitutionally excessive and properly deferred to the jury’s discretion, declining to sit as a seventh juror. See Bould v. Touchette, 349 So.2d 1181, 1184-85 (Fla. 1977); R.J. Reynolds Tobacco Co. v.

Webb, 93 So.3d 331, 336 (Fla. 1st DCA 2012) (quoting Dyes v. Spick, 606 So.2d 700, 702 (Fla. 1st DCA 1992)) (“The trial court, does not sit as a seventh juror.-Neither does the reviewing court reserve the prerogative to overturn a damages verdict with which it merely disagrees.”)). Based on the foregoing, and with the understanding that RJR’s conduct is among the most reprehensible, we reverse the Fourth District’s finding that the punitive damages award in this case was unconstitutionally excessive. II.

Whether the Trial Court Properly Denied Remittitur of the Punitive Damages The Fourth District also held that remittitur was appropriate under

section 768.74(5), Florida Statutes (2012), because Mrs. Schoeffs counsel asked the jury not to exceed $25 million in punitive damages. We evaluate a denial of remitti-tur for abuse of discretion. We have held that a trial court should not disturb, a jury’s punitive damages for a personal tort unless the amount is unreasonable. Bould, 349 ,So.2d at 1184-85. Florida’s remittitur and additur statute lists factors important to the evaluation of a punitive award,, including whether the amount can be logically adduced by a reasonable jury. § 768.74(5)(a)-(e), Fla. Stat.

A punitive damages award must also bear some relationship to the defendant’s ability to. pay and should not result in the defendant’s bankruptcy. Engle, 945 So.2d at 1263-64. Punitive damages must also be reviewed alongside compensatory damages “to ensure a reasonable relationship between the two.” Id. at 1264. Florida courts have frequently held “that a jury might properly award damages equal to or in excess of those requested by counsel in closing argument.” Lopez v. Cohen, 406 So.2d 1253, 1256 (Fla. 4th DCA 1981) (citing Braddock v. Seaboard Air Line R.R.

Co., 80 So.2d 662 (Fla. 1955)); see also Philip Morris USA, Inc. v. Cuculino, 165 So.3d 36, 39 (Fla. 3d DCA 2015). In reviewing Mrs. Schoeffs award, the trial court found that the award was not influenced by undue passion or prejudice against the defendant, see

section 768,74(5)(a), • Florida Statutes, and found that the award did not warrant remittitur, despite the fact that there was no reason for the jury to have ignored Mrs. Schoeffs request not to exceed a $25 million award. The Fourth District found that the trial court abused its discretion and reversed its denial of RJR’s motion for remittitur because of its note regarding the jury’s decision to exceed Mrs. Schoeffs request. Schoeff, 178 So.3d at 492-93. The Fourth District found that the award could not “-be adduced in a logical manner by reasonable persons” because the jury had exceeded requested damages.

Id. at 493 (quoting §' 768.74(5)(e), Fla. Stat. (2012)). We find that this single factor is insufficient to render an award excessive. The fact that the jury exceeded requested damages does not render the award itself unreasonable or excessive. See Braddock, 80 So.2d at 662; Lopez, 406 So.2d at 1256.. Furthermore, the trial court only noted that the jury’s decision to exceed requested damages was unreasonable, but did not find that the award could not be adduced by a reasonable jury as

section 768.74(5)(e), Florida Statutes, requires. The trial court found the award free from undue prejudice. See § 768.74(5)(a), Fla. Stat. There is no contention that the jury ignored evidence or misconceived the merits of the case relating to damages. See § 768.74(5)(b), Fla. Stat. There is no dispute that the damages in this case are based on evidence, not determined by speculation or conjecture. See .§. 768.74(5)(c), Fla. Stat. At less than three times the amount of the compensatory damages, the punitive damages also bear a reasonable relationship to the injury. See § 768.74(5)(d), Fla.- Stat.

In addition, there is no suggestion that RJR does not have the ability to pay. See Engle, 945 So.2d at 1268-64. The trial court did not abuse its discretion in denying RJR’s motion for remittitur. The Fourth District, however, erred in ordering a remittitur or new trial. CONCLUSION Based on the foregoing, we quash the decision-below and approve the First District in Sury to the extent that it held that the intentional tort exception, applies to Engle progeny cases in which the jury finds for the plaintiff on intentional, tort claims such that compensatory damages may not be reduced by comparative fault.

We quash the Fourth District’s findings that Mrs. Schoeff waived the intentional tort exception, that the punitive damages award was unconstitutionally excessive, and that the trial court abused its discretion in denying RJR’s motion for remitti-tur. It is so ordered. LABARGA, C.J., and LEWIS, J., concur. PARIENTE, J., concurs in result with an opinion. POLSTON, J., concurs in result. LAWSON, J., concurs in part and dissents in part with an opinion! in which CANADY, J., concurs. . Engle v. Liggett Grp., Inc., 945 So.2d 1246 (Fla. 2006). . RJR's share of this award was approximately $36 billion. Engle v. R.J.

Reynolds Tobacco, No. 94-08273 CA-22, 2000 WL 33534572 (Fla. 11th Jud. Cir. Ct. Nov. 6, 2000), rev'd sub nom. Liggett Grp. v. Engle, 853 So.2d 434 (Fla. 3d DCA 2003), approved in part and quashed in part, 945 So.2d 1246 (Fla. 2006).