Friday, October 23, 2009

Florida Supreme Court Agrees To Hear Case Re: Whether The Court Or Arbitrator Resolve Public Policy Challenges

The Florida Supreme Court entered an order this week agreeing to review the Second District's decision in Gessa v. Manor Care of Florida, Inc. (2D07-1928).  The Florida Supreme Court's order accepting the case can be found here and the Florida Supreme Court case is styled Angela I. Gessa, etc. v. Manor Care of Florida, Inc., et al. (SC09-768).   Chief Justice Quince, Justice Pariente, Justice Lewis and Justice Canady concurred.  Justice Perry concurred in accepting the case but would do so without oral argument.  The Petitioner's Jurisdictional Brief can be found here and the Respondent's Brief on Jurisdiction can be found here.  Both the Petitioner and the Respondent agreed the court should accept the case.

The Responsent's Brief on Jurisdiction states:
Consistent with these federal decisions, the Second District refused to address Gessa’s remedial limitations challenge and instead left the issue for the arbitrator. While the court did not explain why it was sending the case to arbitration without resolving Gessa’s public policy challenge, and though the court stated in a footnote it was not deciding whether the arbitrator or court should address this issue in the first instance, the result left the public policy challenge for the arbitrator to resolve, contrary to Bryant, SA-PG-Ocala, and Linton.

Given the result below, the Second District’s decision in Gessa conflicts with the decisions in Bryant, SA-PG-Ocala, and Linton. A trial court in the Second District sends a case to arbitration without addressing the enforceability of an agreement’s remedial limitations, while trial courts in the First, Fourth, and Fifth District’s resolve the enforceability issue themselves. Manor Care thus agrees the Court should accept jurisdiction to resolve the important issue of whether a public policy challenge to an arbitration agreement’s remedial limitations is for the court or the arbitrator to decide.
The Petitioner's Jurisdictional Brief states:
The Florida Constitution grants this Court discretionary jurisdiction to review a district court decision that expressly and directly conflicts with a decision of another district court. Art. V, §3(b)(3), Fla. Const. (1980). Ms. Gessa seeks further review of the decision based on the Second District’s express and direct conflict with the Fourth District’s decision in Alterra Healthcare Corporation v. Bryant, 937 So.2d 263 (Fla. 4th DCA 2006), with the First District’s opinion in Alterra v. Linton, 953 So.2d 574, 576 (Fla. 1st DCA 2007) and with the Fifth District’s decision in SA-PG-Ocala, LLC v. Stokes, 935 So.2d 1242 (Fla. 5th DCA 2006), and numerous other decisions cited throughout this brief.
The Gessa decision is in direct and express conflict with decisions from the First, Fourth and Fifth Districts on the issue of whether a Court should decide enforceability issues of an arbitration agreement under the first prong of Seifert v. v. U.S. Home Corp., 750 So.2d 633 (Fla. 1999), or whether the arbitrator should decide that issue, where only the arbitration provisions (rather than the entire admissions agreement)is challenged as being void as violative of public policy. The Gessa decision is also in conflict with decisions from the other districts on the substantive issue of whether limitations of liability provisions which are, in fact, violative of public policy are severable, and if so, by whom? —the court, or the arbitrator. These multiple conflicts justify resolution by this Court by its exercise of discretionary conflicts jurisdiction. Further, an opinion from this Court explaining the applicability of this Court’s opinion in Cardegna v. Buckeye Check Cashing, Inc., 930 So.2d 610 (Fla. 2006) to the instant case would be instructive, where, as here, the arbitration agreement was a stand-alone document, but part of a packet of numerous forms which accompanied Ms. Gessa’s admissions agreement, and Ms. Gessa sought only to avoid the arbitration agreement, not the admissions contract.


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