General Negligence or Medical Negligence?

In Stubbs v. Surgi-Staff, Inc. (4D10-691), the Fourth District addressed the distinction between general negligence and medical negligence. 

With regard to the facts, the court stated: "Together, Stubbs’ deposition and Rivera’s affidavit establish the following undisputed facts. Stubbs was given contrast dye for a CT scan. Prior to the procedure, she was introduced to Rivera, a nurse, not an orderly as alleged in the complaint. During the scan, Stubbs began to vomit. After the scan was complete, the CT technician called Rivera into the room to assess Stubbs, believing she was suffering an allergic reaction to the dye. Rivera instructed Stubbs to move from the CT table to a gurney he brought into the room, but Stubbs fell and was injured when she attempted to get off the table and move to the gurney. Subsequently, Rivera gave Stubbs oxygen and attached EKG leads and she was treated by ER doctors."

Based upon those facts, the court concluded: "We find that the trial court correctly applied the controlling case law in concluding that the complaint sounded in negligence attributable to Rivera’s provision of medical care and services. ...... As in Neilinger v. Baptist Hospital of Miami and Indian River Memorial Hospital, Inc. v. Browne, we find that the gravamen of the negligence alleged in the instant case arose from the provision of medical care and services."

In a concurring opinion, Chief Judge May wrote:

I concur in the majority opinion and write to express my concern about the proverbial slippery slope we have travelled down when we began to dissect every minute of a medical procedure to determine if something that occurs during the procedure is medical negligence or general negligence. Not surprisingly, this issue most often arises when someone has missed the two-year statute of limitations or failed to comply with the pre-suit screening process for a medical negligence claim. When that happens, lawyers creatively argue that, notwithstanding the plaintiff was a patient undergoing a medical procedure, the moment in time when the plaintiff was injured involved general negligence. In my view, once a medical procedure has begun, whatever happens during that procedure should be subject to the requirements for filing a medical negligence action if the allegations are directed at medical personnel.

Summary Judgment Affidavits

In Helping Hand Private Foundation, Inc. v. Ocean Palm Beach Club, Inc. (5D10-4403), the Fifth District reminded that when filing a summary judgment motion, "supporting affidavits are required to be 'made on personal knowledge, . . . set forth such facts as would be admissible in evidence, and . . . show affirmatively that the affiant is competent to testify to the matters stated therein.'” The court also pointed out that it had previously reversed a summary judgment order involving the same parties on the same grounds. Helping Hand Private Foundation, Inc. v. Ocean Palms Beach Club, Inc., 71 So. 3d 201 (Fla. 5th DCA 2011).

General Allegation Of Fraud Is Not Sufficient To Set Aside Judgment

In Vilvar v. Deutsche Bank Trust Company Americas (4D11-457), the Fourth District affirmed the trial court's order refusing to vacate a judgment. In this case, soon after a final judgment was obtained the defendant filed bankruptcy. After the bankruptcy action was dismissed, the plaintiff moved to amend its judgment to include additional amounts owed and relied upon the affidavit of Cross in obtaining the amended judgment. "One day before the foreclosure sale was to have occurred, Vilvar filed a second petition in bankruptcy, which was also later dismissed. The sale was re-scheduled, but one week before the sale, Vilvar filed a motion to vacate the amended final judgment pursuant to Florida Rule of Civil Procedure 1.540(b). In her motion, Vilvar alleged that Cross’s affidavit “was inaccurate and constituted hearsay” and it “failed to include sworn or certified copies of the very business records upon which” Cross relied. The motion was denied and this appeal followed." The court stated:

What occurred in Freemon is precisely what transpired in this case. Cross’s affidavit stated that she was the assistant vice president of Saxon, which, as the loan servicer, was responsible for collection of the loan and pursuit of any delinquency in payments. Cross went on to explain that she was familiar with Saxon’s books, records, and documents relevant to the allegations in the complaint, and that all of the books, records, and documents concerning the loan were kept by Saxon in the regular course of its business. Cross’s affidavit also stated that she had personal knowledge of the facts regarding the sums due and owing to the bank, and provided a complete breakdown of those sums.

In stark contrast, Vilvar’s motion does not demonstrate fraud or show why any of the alleged facts would entitle her to relief sufficient to set aside the amended final judgment. She does not dispute that she defaulted on her mortgage, and does not allege that the amounts set forth in Cross’s affidavit or that were due and owing are incorrect. Indeed, Vilvar has not specifically alleged any fraud in connection with Cross’s statements in her affidavit regarding the amounts due. Equally as compelling is the fact that Vilvar failed to object to or appeal the final judgment and the amended final judgment. Vilvar waited over a year from the entry of the amended final judgment to take issue with Cross’s affidavit.

Citing to Freemon, Hembd v. Dauria, Flemenbaum v. Flemenbaum, Cady v. Chevy Chase Sav. & Loan, Inc., and Rule 1.120(b), the court stated: "This Court has made it abundantly clear that general allegations of fraud will not support a motion to vacate a final judgment under rule 1.540(b)(3)." 

We likewise find no merit to Vilvar’s claim that Cross’s affidavit did not constitute admissible evidence and that failure to attach any sworn or certified copies of the records upon which she relied should have made the affidavit insufficient under rule 1.510(e). Vilvar’s failure to timely object to the sufficiency of Cross’s affidavit when it was presented on motion for summary judgment is fatal to this claim.

Mandatory Mediation Program In Foreclosure Cases Ended

The Florida Supreme Court entered THIS order today and ended the mandatory mediation program in foreclosure cases. The court stated:

The program was established as a means for the court system to address the overwhelming number of mortgage foreclosure cases coming into the system. The Court has reviewed the reports on the program and determined it cannot justify continuation of the program. Accordingly, upon issuance of this administrative order, the statewide managed mediation program is terminated.

The court also noted that:

Circuit chief judges are vested under article V, section 2(d), Florida Constitution, with responsibility for the administrative supervision of their circuits. Section 43.26, Florida Statutes, authorizes circuit chief judges “to do everything necessary to promote the prompt and efficient administration of justice.” These authorities empower the circuit chief judges to adopt or employ any measures permitted by statute or court rule to manage pending and new residential mortgage foreclosure cases, including referral of cases to mediation on a case-by-case basis pursuant to section 44.102, Florida Statues, and Florida Rule of Civil Procedure 1.700(a).

In re: Certification of Need for Additional Judges

In In re: Certification of Need for Additional Judges (No. SC11-2246), the Florida Supreme Court issued an opinion and certified the need for 23 new circuit court judges, 48 new county court judges, and one new judge in the Second District Court of Appeal. Attached to the opinion was the chart below which breaks down the trial court judge needs by county:

"Florida Law Update," A New Blog By Judge Ramirez

Third District Judge Juan Ramirez, Jr. started a new blog, "Florida Law Update." 

"The blog covers appellate cases as they are released from the Third District and other appellate courts in the state. It is intended merely as a mechanism for alerting busy lawyers to what Judge Ramirez considers significant or interesting cases, with a link so that you can read the entire opinion. Judge Ramirez will just report the cases in a neutral, nonjudgmental manner, particularly the Third District’s own opinions." 

The emphasis is mine. You can view the blog by clicking on the title above (in this post), or in the "Florida Legal Websites and Blogs" list located on the right of this page. On that note, there are a number of blogs and sites that may be of interest in the various lists on the right of this page or on the "Links" page of this blog.

Fourth District Allows For Filing Of Stipulation For Extension Of Time (As Opposed To Motions)

Effective February 1, 2012, the Fourth District will allow the parties to stipulate that they have agreed to an extension of time to file briefs. The court's administrative order is below:

Admin. Order No. 2011-2 (In re: Agreed Extensions of Time for Briefs)

Fourth District Reverses Order Finding Non-Party Witness Waived Service Requirements

In Garfinkel v. Katzman (4D11-1354), the Fourth District reversed the trial court's order and agreed with a challenge by a non-party witness to "an order of the trial court finding she waived her objection to the court’s exercise of jurisdiction over her person by filing a motion for protective order that sought to quash the deposition subpoena for lack of service and to limit any deposition permitted on the grounds of the spousal and litigation privileges." The court held that:

A court lacks jurisdiction over a non-party and the authority to require the non-party to appear for deposition where she has not been served with the deposition subpoena....The filing of the motion for protective order, seeking to quash or limit the deposition, was defensive and not a claim for affirmative relief that resulted in a waiver of the claim of lack of service and personal jurisdiction.

Two Recent State Supreme Court Opinions In Foreclosure Cases

As discussed HERE, the Florida Supreme Court declined to accept a settlement stipulation today and will answer the question certified by the Fourth District in a foreclosure lawsuit. Therefore, I thought it was worth posting two state supreme court opinions relating to foreclosure that were sent to me in the past days/weeks. 

Previously, HERE, I noted the Maine Supreme Judicial Court's opinion in JPMorgan Chase Bank v. Harp  (Jan. 6, 2011), and the Massachusetts Supreme Judicial Court's decision in U.S. Bank National Association v. Ibanzez (Jan. 7, 2011). Two other state supreme courts were released in the last couple of weeks. The Arizona Supreme Court released THIS opinion in Vasquez v. Saxon Mortgage, Inc., and answered a certified question from the United States Bankruptcy Court.  Additionally, the Maine Supreme Judicial Court released THIS opinion in Federal National Mortgage Association v. Bradbury. 

Federal National Mortgage Association v. Bradbury

In Bradbury, the Maine Supreme Judicial Court stated that "Bradbury challenges the court’s failure to find loan servicer GMAC Mortgage, LLC in contempt pursuant to M.R. Civ. P. 56(g) after sanctioning Fannie Mae for submitting a bad faith affidavit for purposes of summary judgment. She also contends that the court erred in failing to award her attorney fees and costs associated with opposing Fannie Mae’s motion for a protective order."


The court stated that "The affidavit in this case is a disturbing example of a reprehensible practice. That such fraudulent evidentiary filings are being submitted to courts is both violative of the rules of court and ethically indefensible. The conduct through which this affidavit was created and submitted displays a serious and alarming lack of respect for the nation’s judiciaries."


Notwithstanding that criticism, the court affirmed the lower court's refusal to award additional sanctions. The court stated that:

In the circumstances of this case, however, we do not disturb the sanctions fashioned by the court for the bad faith affidavit. Courts have rule-based, as well as inherent, power to hold parties in contempt.....but the decision of whether or not to do so rests in the considerable discretion of the trial court.

Our decision is supported by substantial authority—or rather, the lack thereof—from other jurisdictions. To date, no published opinion shows that a court in Maine or any other state has imposed a contempt finding pursuant to Rule 56(g) for submitting a bad faith affidavit. Further, although M.R. Civ. P. 56(g)—in effect without amendment since 1959—largely duplicates the language of Fed. R. Civ. P. 56(h)5—in effect since 1937—no federal court has ever issued a finding of contempt on this basis.

Vasquez v. Saxon Mortgage, Inc.

In Vasquez, the Arizona Supreme Court answered one of two certified questions from the United States Bankruptcy Court. A brief description of the case and the two certified questions are included in the court's oral argument summary which can be viewed HERE. Regarding the question it chose to answer, the court stated:

The first certified question is whether “the recording of an assignment of deed of trust [is] required prior to the filing of a notice of trustee’s sale under A.R.S. § 33-808 when the assignee holds a promissory note payable to bearer.” The answer is no; Arizona law imposes no such requirement.

The court declined to answer the second certified question because it determined that answering the question would not dispose of an issue in the case pending before it. The oral argument, held at the University of Arizona, can be viewed HERE. 

Florida Supreme Court Rejects Stipulation For Dismissal Of Pino v. Bank of New York

In Pino v. The Bank of New York (SC11-697), a divided Florida Supreme Court denied "the parties’ request to dismiss this proceeding." Justice Pariente, Justice Lewis, Justice Labarga, and Justice Perry concurred in the per curiam opinion. Chief Justice Canady wrote a dissenting opinion that was joined by Justice Quince and Justice Polston. The case came to the Florida Supreme Court after the Fourth District, sitting en banc, certified the following question as one of great public importance:

DOES A TRIAL COURT HAVE JURISDICTION AND AUTHORITY UNDER RULE 1.540(b), Fla. R. Civ. P., OR UNDER ITS INHERENT AUTHORITY TO GRANT RELIEF FROM A VOLUNTARY DISMISSAL WHERE THE MOTION ALLEGES A FRAUD ON THE COURT IN THE PROCEEDINGS BUT NO AFFIRMATIVE RELIEF ON BEHALF OF THE PLAINTIFF HAS BEEN OBTAINED FROM THE COURT?

Pino v. Bank of New York Mellon, 57 So. 3d 950, 951 (Fla. 4th DCA 2011). The Fourth District's opinion was previously discussed HERE. Based upon the Fourth District's certified question, the Florida Supreme Court accepted jurisdiction. Pino v. Bank of New York, 58 So. 3d 261 (Fla. 2011). 

After the supreme court accepted jurisdiction, the parties settled the dispute and filed a stipulation for dismissal in the Florida Supreme Court. The Court declined to accept the stipulation for dismissal and stated:

The question certified to us by the Fourth District Court of Appeal in this case transcends the individual parties to this action because it has the potential to impact the mortgage foreclosure crisis throughout this state and is one on which Florida’s trial courts and litigants need guidance. The legal issue also has implications beyond mortgage foreclosure actions. Because we agree with the Fourth District that this issue is indeed one of great public importance and in need of resolution by this Court, we deny the parties’ request to dismiss this proceeding.

Analyzing Florida Rule of Appellate Procedure 9.350, the supreme court stated that the "language of this rule does not impose upon the appellate court a mandatory obligation to dismiss a case following the filing of a notice of dismissal before a decision on the merits has been rendered. Rather, this Court has long recognized its discretion to retain jurisdiction over a matter and proceed with an appeal notwithstanding a litigant’s timely filing of a notice of dismissal pursuant to rule 9.350, especially when the matter involves one of great public importance and is likely to recur."

Based upon that conclusion, the majority held:

Consistent with the rationale undergirding our prior precedent, we conclude that these circumstances fully support this Court’s decision to exercise its discretion to retain jurisdiction over and decide the merits of this important case. To adopt the dissent’s interpretation of rule 9.350(a)—that the act of the parties’ stipulation for dismissal is binding on the Court—would require us to recede from our past decisions recognizing just the opposite. Instead, we adhere to our precedent and, accordingly, exercise our discretion to deny the parties leave to dismiss this review proceeding.

The dissent began: 

Florida Rule of Appellate Procedure 9.350(a) provides that “[w]hen any cause pending in the court is settled before a decision on the merits, the parties shall immediately notify the court by filing a signed stipulation for dismissal.” The rule does not appear to contemplate that such a stipulation for dismissal is subject to disapproval by the Court. The very designation “stipulation for dismissal”—as opposed to “motion for dismissal”—suggests that the act of the parties is dispositive. The committee note to the rule recognizes that dismissal of the case is the clerk’s ministerial duty: “On the filing of a stipulation of dismissal, the clerk of the court will dismiss the case as to the parties signing the stipulation.”.....

Under the Florida Constitution, this Court does not have the power to reach out and grab cases that we deem worthy of our attention. Nor should we exercise the power to grasp a case which has been brought to the Court but which the parties wish to dismiss before it has ever been considered by the Court on the merits. In doing so, we step beyond the proper role of an appellate court to adjudicate those cases that are properly presented to it by a party seeking review.

Florida's Post-Judgment Interest Rate (Adjusted Quarterly)

Previously, Florida's Chief Financial Officer established the post-judgment interest rate on an annual basis. However, beginning July 1, 2011, the CFO sets the interest rate on December 1, March 1, June 1, and September 1 of each year. 

The interest rates for 2011 and the first quarter of 2012 are listed below by date:

• 01/01/2011-09/30/2011: 6%
• 10/01/2011-12/31/2011: 4.75%
• 01/01/2012-03/31/2012: 4.75%

The image below was created by Florida's Chief Financial Officer:

A post when the 2011 statutory rate of interest was announced can be viewed HERE.

A post when the 2010 statutory rate of interest was announced can be viewed HERE.

Proceeds From Sale Of Marital Home Sold As Part Of Divorce Subject To Homestead Protection

In Kerzner v. Kerzner (3D10-3124), the Third District affirmed "an order and final judgment which determined that proceeds from the sale of a marital home, pursuant to the terms of a marital settlement agreement, were subject to homestead protection under the Florida Constitution."

En Banc Fourth DCA Vacates Panel Opinion Relating To Discovery Orders

In Alvarez v. Cooper Tire & Rubber Company (4D08-3498), the Fourth District, sitting en banc, vacated the panel opinion previously discussed HERE, and affirmed the trial court's judgment. Judge Farmer (now retired) wrote the now vacated panel opinion in which Judge Hazouri and Judge Damoorgian concurred. Judge Warner wrote the court's en banc opinion and was joined by Chief Judge May, Judge Polen, Judge Stevenson, Judge Gross, Judge Taylor, Judge Hazouri, Judge Damoorgian, Judge Ciklin, Judge Gerber, Judge Levine, and Judge Conner. There were no dissenting or concurring opinions. The opinion began:

Appellant, Mario Alvarez, as personal representative of the estate of Jose Ramon Alvarez, appeals a final judgment in favor of Cooper Tire Company in a products liability action. Alvarez complains that the trial court abused its discretion in limiting document discovery from Cooper Tire to those involving tires with the same or similar specifications. Two trial judges conducted multiple hearings and document reviews, both concluding that the limitations were appropriate. We find no abuse of discretion and affirm.

Regarding the facts, the Court stated: "In December 2000, Abraham Calel was driving his 1994 Isuzu P15 pick-up truck on the Sawgrass Expressway with Jose Alvarez, sitting in the right-side passenger seat, and Rudy Velasquez, sitting in the middle. Neither the driver nor the passengers had on their seatbelts. Without warning, the right rear tire tread completely separated from the tire but the tire remained inflated. When this happened, the driver lost control of the pick-up truck, went off the highway, and the truck rolled over. Alvarez was partially ejected from the vehicle and ended up pinned underneath the truck. He died by asphyxiation. The other passenger was also killed in the accident. The driver survived."

The court described the facts relevant to the discovery issue: "The failed tire was a Cooper Trendsetter Steel Belted Radial Tire (Cooper Trendsetter SE, P205/70R14), produced in Tupelo, Mississippi during the 15th week of 1998 pursuant to Green Tire Specification 3011. After institution of the lawsuit, Alvarez filed a multitude of discovery requests. Those requests demanded discovery of information and documents regarding all light truck tires manufactured by Cooper.........Cooper objected to the discovery based up on trade secret, burdensomeness, and that the plaintiff was entitled to discovery only for those tires which were substantially similar to the tire which was the subject of the lawsuit. Cooper maintained that those tires with the same or related GTS number, namely GTS 3011 and 3163, were the only tires substantially similar to the subject tire. Alvarez, however, claimed that the tires manufactured to other Green Tire Specifications were substantially similar in that all Cooper tires were manufactured using the same basic processes." 

There were four different discovery disputes, before two different judges in the Circuit Court.

The First Dispute Before Judge Brunson

The original trial judge, Judge Brunson, held a two day hearing in 2003. Although no live testimony was taken, the parties showed the judge a demonstration tire to explain tire construction and the manufacturing process. Both sides proffered expert affidavits and argued their respective implications........After this thorough hearing, and having taken additional time to review material submitted, Judge Brunson limited discovery 'to the subject tire and substantially similar tires which this Court defines as tires designed and manufactured according to Green Tire Specification 3011 and its Related Specification 3163.' Cooper then produced over 1,500 documents regarding those tires.

The Second Dispute Before Judge Brunson

In 2005, Alvarez filed a second motion to compel. He sought specific Cooper documents which had been produced in consolidated lawsuits in California, known as “the JCCP” (“Judicial Council Coordinated Proceeding”). This California proceeding permitted discovery to be coordinated between multiple lawsuits against Cooper, involving many different GT Specification tires, none of which included the tire specifications involved in this case. These documents were designated trade secret by the California judge. The parties obtained an order authorizing the Florida courts to inspect these documents for the purpose of this discovery dispute. Judge Brunson conducted a two-day hearing with extensive argument regarding the 139 documents.  Some of the documents were reviewed during the hearing. The judge then reviewed the remaining documents. She denied discovery, concluding that the documents were protected by trade secret and plaintiff had not shown a reasonable necessity to require their production. None of the documents included the 3011 or 3163 tire specification numbers.

First Hearing Before Judge Fine

When this case was assigned to Judge Fine in 2005, Alvarez filed another motion to compel production of the JCCP documents. This time, he pointed out that these documents had been produced in an Arizona case and again claimed that they should be produced in this case, as he claimed that the tires in the Arizona case were virtually identical. Those tires, however, had different GTS numbers. Judge Fine held a hearing and then reviewed the documents himself. He denied production.

Second Hearing Before Judge Fine

In 2007, Alvarez filed another motion, this time to vacate the original 2003 order limiting discovery to the two GTS numbers. He based his request on an order of Judge Kenneth Stern who had allowed additional production of documents in another Cooper Tire case pending in the Fifteenth Circuit in Palm Beach County. That case, however, did not involve GTS numbers 3011 or 3163. Judge Fine again held a hearing on the issue and again denied discovery, noting that he simply disagreed with Judge Stern’s ruling.

"On appeal, Alvarez argues that the trial court’s limitation of discovery to the 'subject tire and substantially similar tires,' defined as 'tires designed and manufactured according to Green Tire Specification 3011 and 3163,' was too narrow and deprived him of relevant discovery......In products liability actions, when a plaintiff seeks discovery regarding other products manufactured by the defendant, Florida courts have uniformly held that the other products must be 'substantially similar' to the subject product."

The Court held:

Whether another product is “substantially similar” is a question for the trial court based upon all of the proofs presented. In this case, the trial judge reviewed the affidavits from the experts, saw a demonstration of the tire at the hearing, heard argument of counsel, and reviewed many of the documents. In fact, two trial judges reviewed documents and held multiple hearings on the issue, and each came to the same conclusion—that discovery was properly limited to tires with the subject GTS numbers. Based upon the record before us, we cannot find that the court abused its discretion.

This court adheres to review of discovery orders under an abuse of discretion standard. Trial judges must be afforded leeway in making the relevance and burdensomeness decisions required in discovery disputes. Otherwise, the cost and burden of civil litigation will imperil its very existence.

[emphasis is mine].

Southern District of Florida Amends Local Rules (Effective Dec. 1, 2011)

The Local Rules for the Southern District of Florida have been amended, effective December 1, 2011. The new rules are below and followed by the order implementing the rule change which shows the changes in the rules.

Southern District of Florida Local Rules (December 1, 2011) Southern District of Florida Order Amending Local Rules 2011-100

Florida Supreme Court Issues Second Arbitration Opinion Of Day - Public Policy Challenge Decided By Court

In Gessa v. Manor Care of Florida, Inc. (SC09-768), the Florida Supreme Court held "that the district court below erred in the following respects: (i) in ruling that the limitation of liability provisions in this case, which place a $250,000 cap on noneconomic damages and waive punitive damages, are severable; (ii) in failing to rule that the court, not the arbitrator, must decide whether the arbitration agreement violates public policy; and (iii) in failing to rule that the above limitation of liability provisions violate public policy. As in Shotts, we also conclude that the United States Supreme Court's decision in Jackson is inapplicable here." The Shotts opinion was also released today and is discussed HERE. Gessa was previously discussed HERE.

In Gessa, Justice Perry wrote the majority opinion which was joined by Justice Pariente, Justice Lewis, Justice Quince and Justice Labarga. Justice Polston wrote a dissenting opinion which was joined by Chief Justice Canady.

The majority described the facts as follows: "Angela Gessa was admitted as a resident to Manor Care of Florida, Inc., a nursing home. Upon admission, her daughter, acting as her attorney-in-fact, signed admissions documents that included an arbitration agreement. During her stay, Gessa filed suit against Manor Care, alleging negligence, violation of resident's rights, and breach of fiduciary duty. Manor Care moved to compel arbitration. At the hearing on the motion, Gessa argued that the arbitration agreement was unconscionable and contrary to public policy due to the limitation of liability provisions in the agreement that capped noneconomic damages at $250,000 and waived punitive damages. The trial court, however, granted the motion to compel, ruling that, because any offensive clauses can be severed, the agreement was not unconscionable. The court declined to rule on the public policy issue, leaving it for the arbitrator. Gessa appealed, arguing that the limitation of liability provisions violated public policy and were not severable. The district court affirmed, agreeing with the trial court that the provisions were severable. Also, the district court did not rule on the public policy issue, leaving it for the arbitrator."

Severability

"As in Shotts, we conclude that the limitation of liability provisions in the present case, which place a $250,000 cap on noneconomic damages and waive punitive damages, are not severable from the remainder of the agreement."

Court or Arbitrator

"This issue has already been decided in Gessa's favor in Shotts. There, we held that the court, not the arbitrator, must decide whether an arbitration agreement violates public policy"

Limitation of Liability Provision

"As in Shotts, we conclude that the limitation of liability provisions in the present case violate public policy. As noted above, the nursing home statute provides for the award of 'punitive damages for gross or flagrant conduct or conscious indifference to the rights of the resident. Moreover, there was no cap on pain and suffering damages in the statute.' In contrast, the limitation of liability provisions in the present case eliminate punitive damages altogether and severely restrict damages for pain and suffering. These provisions directly frustrate the remedies created by the statute. The provisions eviscerate the remedial purpose of the statute, or, in the language of Shotts, they 'substantially diminish[] or circumvent[] these remedies.' Shotts, No. SC08-1774, slip op. at 31. Thus, these limitation of liability provisions, which place a $250,000 cap on noneconomic damages and waive punitive damages, violate the public policy of the State of Florida and are unenforceable."

Rent-A-Center v. Jackson

The Court's analysis was nearly identical to that in Shotts and the court concluded the Supreme Court's decision did not control the outcome of this case.

The Dissent

The dissent began: 

The majority errs by holding that the arbitration agreement is not enforceable because challenged limitations of remedies within the agreement violate public policy. Contrary to the majority's ruling, the challenged limitations may be severed from the arbitration provisions so that the arbitration should go forward as agreed by the parties. Moreover, the Florida Legislature, not this Court, should decide whether Florida's public policy has been violated. Because the Florida Legislature has addressed the enforceability of other limitations but not these, the Court should not void the contract. The Court should not be a policy maker.

Severability

"Severability of the contract is a matter of state law, therefore is controlled by Florida law....Severability has long been recognized in Florida‟s law of contracts and is determined by the intent of the parties. Who decides whether severance is permissible in this contract—the court or arbitrator? As earlier stated, the enforceability of the arbitration agreement, not the whole admissions agreement, is challenged and there is no delegation clause for the matter to be decided by arbitration. Accordingly, the court, rather than the arbitration panel, must decide severability here."

"Contrary to the majority's ruling, the issue of severability cannot be decided in Petitioner's favor. The majority mistakenly considers the $250,000 limitation on noneconomic damages and the preclusion of punitive damages in the contract as 'the financial heart of the agreement.'....Contrary to the majority's ruling, the limitations of noneconomic damages and elimination of punitive damages are divisible and do not eliminate the essence of the agreement to arbitrate the parties' claims."

Because of the severability of the challenged provisions, the matter should be arbitrated, and the arbitration panel should decide whether the challenged provisions may be enforced, if they ever arise. The speculative nature of these challenged limitations is an additional reason to enforce the arbitration provision. Petitioners may not be able to prove entitlement to noneconomic damages exceeding $250,000 or punitive damages so that the limitations would never be triggered. If that were the case, then the arbitration agreement, which otherwise should be enforced according to the facts of the case, would be improperly rendered unenforceable by the speculation that such limitations might be invoked.

Public Policy - Enforceability

Because the arbitration panel should decide whether the challenged provisions may be enforced as a matter of Florida law, as described earlier, the majority erred by reaching the issue and then again by erroneously deciding the challenged limitation provisions are unenforceable as void against public policy. The Florida Legislature, not this Court, should decide Florida's public policy. It is well-settled that contractual waivers are enforceable under Florida law for any type of rights......The public policy of the State of Florida was expressed by the vote of the people of Florida by enacting this 2004 Florida constitutional amendment to provide rights relating to contingency attorney's fees. In spite of the remedial provisions in favor of claimants, this Court held that these Florida constitutional rights could be waived by contract and that attorneys could recover more than permitted by this amendment. See In re Amendment to the Rules Regulating the Fla. Bar—Rule 4-1.5(f)(4)(B) of the Rules of Prof'l Conduct, 939 So. 2d 1032 (Fla. 2006) (adopting an amendment to the Rules Regulating the Florida Bar to permit a contractual waiver of section 26, imposing a specified legal fee structure for contingency fees). It is difficult to understand how, as a matter of public policy, the expressly declared rights of this constitutional provision may be waived, but the damages provided by statute may not be limited by contract....Unlike other statutory remedies, the Florida Legislature has not prohibited a waiver of the remedies provided in chapter 400, Florida Statutes (2004). The Florida Legislature has specifically prohibited waiver of rights under chapter 443, Florida Statues (2004), Florida's unemployment compensation law, and voided any agreement that attempts to waive those rights....

"Similarly, if waiver of the remedies of chapter 400 violates public policy, it should be the Florida Legislature's decision to specify that such waivers are prohibited and void, rather than the judiciary's." [emphasis is mine].