Wednesday, January 27, 2010

Order Compelling Arbitration Over Mold Claim Against Builder Affirmed

In Rodriguez v. Builders Firstsource-Florida, LLC (4D09-1716), the Fourth District affirmed Palm Beach County Circuit Court Judge Edward A. Garrison's order compelling arbitration.  The court stated:
The appellants assert that their personal injury claims for mold exposure are based on duties of care imposed by common law—and not on the purchase agreement containing the arbitration clause—and therefore are not arbitrable.....The appellants allege that the damages were caused by the negligent design and construction of the home by GL Associates, GL Corp., and GL Florida, and the window contractor, Builders. In fourteen counts, the appellants claimed property damages as well as substantial adverse health consequences caused by th e mold infestation.
“Whether a particular issue is subject to arbitration is generally considered a matter of contract interpretation, and, therefore, the standard of review is de novo.” Hirshenson v. Spaccio, 800 So. 2d 670, 674 (Fla. 5th DCA 2001).
“[T]here are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Seifert v. U.S. Home Corp., 750 So. 2d 633, 636 (Fla. 1999). Appellants dispute the second element. “[T]he determination of whether a particular claim must be submitted to arbitration necessarily depends on the existence of some nexus between the dispute and the contract containing the arbitration clause.” Id. at 638.
Our decision in Engle Homes, Inc. v. Jones, 870 So. 2d 908, 909 (Fla. 4th DCA 2004) controls this issue. In Engle, the plaintiffs sued their builders for damages arising from mold infestation of their home due to alleged negligent design and construction of the home. Based on the purchase agreement, the builders moved to compel arbitration and stay litigation. An arbitration clause in the purchase agreement provided, in part, that “[a]ny and all unsettled claims or disputes regarding the construction of Residence arising after closing shall be settled by binding arbitration.” Id. at 909 (emphasis added in original).
The language of the Purchase Contract clearly and unambiguously requires submission to binding arbitration for the claims stated in the amended complaint. “A court is not empowered to rewrite a clear and unambiguous provision, nor should it attempt to make an otherwise valid contract more reasonable for one of the parties.” N. Am. Van Lines v. Collyer, 616 So. 2d 177, 179 (Fla. 5th DCA 1993); see also Barakat v. Broward County Hous. Auth., 771 So. 2d 1193, 1195 (Fla. 4th DCA 2000) (“It is never the role of a trial court to rewrite a contract to make it more reasonable for one of the parties or to relieve a party from what turns out to be a bad bargain.”). “The general rule is that competent parties shall have the utmost liberty of contracting and their agreements voluntarily and fairly made will be upheld and sustained by the courts. . . . The fact that one of the parties to a contract made a hard bargain will not alone avoid a contract.” Pierce v. Isaac, 184 So. 509, 513 (Fla. 1938).


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