In Estate of Reinshagen v. WRYP ALF, LLC, No. 5D15-4194 (Fla. 5th DCA April 29, 2016), the Fifth District Court of Appeal reversed the trial court’s order compelling arbitration, relying on its prior decision in Estate of Novosett v. Arc Villages II, LLC, No. 5D14–4385 (Fla. 5th DCA Mar. 11, 2016).
In both Reinshagen and Novosett, the arbitration agreement contained a limitation of liability provision, placing a cap on non-economic damages and precluding the recovery of punitive damages. The Fifth District found that this provision was against public policy and void. The Court also found that the provision was not severable, despite a severability provision, because it constituted the “financial heart” of the arbitration agreement.
Prior to Novosett, the Florida Supreme Court had held that a similar limitation of liability provision violated public policy and was not severable. See Gessa v. Manor Care of Florida, Inc., 86 So. 3d 484, 489 (Fla. 2011). However, unlike Reinshagen and Novosett, Gessa did not contain a severability provision. Accordingly, both Reinshagen and Novosett certified the following question to the Florida Supreme Court as one of great public importance:
DOES THE COURT’S HOLDING IN GESSA V. MANOR CARE OF FLORIDA, 86 So.3d 484 (Fla.2011), CONTROL WHERE, AS HERE, THE CONTRACT CONTAINS A SEVERABILITY CLAUSE?
Donna Greenspan Solomon, Esq., handles business-related appeals, mediation, and arbitration. Donna also co-counsels and serves as freelance business litigator for those wishing to expand the bench strength of their practices. Donna is one of only two attorneys certified by The Florida Bar as both Appellate Specialist and Business Litigator. Donna is a Member of the AAA’s Roster of Arbitrators (Commercial Panel). She is a FINRA-Approved and Florida Supreme Court Qualified Arbitrator. She is also a Certified Circuit, Appellate, and Family Mediator. For more information, call Donna at (561) 910-0054, email Donna@SolomonAppeals.com, or visit http://www.solomonappeals.com.