Second District Deals Blow to Arbitrator's Power

FLORIDA LAW WEEKLY

VOLUME 45, NUMBER 13

CASES FROM THE WEEK April 3, 2020

BECAUSE THE ARBITRATION PROVISION IN THE CONTRACT DID NOT PROVIDE CLEAR AND UNMISTAKABLE EVIDENCE THAT THE ARBITRATOR COULD DECIDE THE ISSUE OF ARBITRABILITY, THE COURT REVERSED THE TRIAL JUDGE’S RULING TO THE CONTRARY

Doev. Natt, 45 Fla. L Weekly D712 (Fla. 2nd DCA March 25, 2020):

The plaintiffs used the Airbnb website and rented a condominium for three-days in Longboat Key. Unbeknownst to the plaintiffs, the defendant had installed hidden cameras throughout the unit. Plaintiffs alleged that the defendant had secretly recorded their entire stay, including their private and intimate interactions. The plaintiffs sued the owner as well as Airbnb.

In response, Airbnb filed a motion to compel arbitration, arguing that the plaintiff’s claims were subject to arbitration under the terms of service of the agreement. The terms of the service here the plaintiffs agreed to were done pursuant to a “clickwrap” agreement that they completed on line.

The agreement stated that the parties agreed that the arbitration would be administered by the American Arbitration Association (AAA). Airbnb asserted that whether the claims were arbitrable was an issue for the AAA to decide--not the circuit court--by virtue of the clickwrap agreement’s reference to the AAA arbitration rules and supplementary procedures. Although those rules were not reproduced within the clickwrap agreement, they conferred on the arbitrator the power to rule on jurisdiction, including any objections made with respect to the existing scope or validity of the arbitration agreement, or arbitrability of any claim or counterclaim.

While the trial judge believed that the claims were outside of the scope of the arbitration agreement, the trial judge went on to conclude that he was powerless to make that determination because it was up to the arbitrator under the agreement.

The appellate court observed that question of arbitrability, and who should decide it, the arbitrator or the court, poses something of an analytical challenge.

While noting that its decision might be an “outlier” in the jurisprudence of arbitration, the court held that the clickwrap agreement’s arbitration provisions, and the AAA rule that it referenced addressing an arbitrator’s authority to decide arbitrability, did not rise to “clear and unmistakable” evidence that the parties intended to remove the courts presumed authority to decide such questions, which the law requires. The court noted that its decision conflicted with the conclusion reached by the Fourth District in other cases, and certified conflict to the extent that a conflict existed.

ORDER COMPELLING PRODUCTION OF NAMES AND CONTACT INFORMATION OF NURSING HOME RESIDENTS VIOLATED THEIR CONSTITUTIONALLY PROTECTED PRIVACY RIGHTS.

Saints 120, LLC d/b/a Cross Care Center v. Moore, 45 Fla. L Weekly D679 (Fla. 1st DCA March 24, 2020):

In this nursing home case where a resident fell and ultimately died, the trial judge entered two orders: (1) requiring the nursing home to disclose all documents reflecting the names, addresses, and next of kin of all the nursing home’s residents who were present at the facility on the date the decedent fell (later modified to those persons only in the same unit as the decedent) and (2) compelling the nursing home to produce copies of “section Z” of the Minimum Data Set (MDS) reports for all residents present in the facility on that date (also limited on reconsideration).

The court stated that this type of information was exactly the type of “cat out of the bag” discovery that can cause irreparable harm to individuals who are not parties to litigation because the orders can work to unlawfully infringe on the privacy rights of the non-party nursing home residents and the confidentiality of their medical information.

In assessing whether there was a departure from the essential requirements of law, the plaintiff had alleged that the fall was “unwitnessed”, therefore there was no relevance of the names of all the unit’s residents, when none of them had witnessed the fall. Additionally, the order required the production of constitutionally protected privacy details under Article I, Section 23 of the Florida Constitution.

Before a trial judge may compel such production, there must be a balance of personal rights against evidentiary relevancy; something the trial court here did not engage in.

Additionally, under §456.057 in Subsection (6) and (7), patients have control over their medical records, and the owners may only release that information under certain circumstances. To do so without written authorization, requires proper notice to a patient or the patients legal representative. As this order cast a wide net, there was a departure from the essential requirements of law.

However, the second order did not suffer from the same infirmity. It did seek to discover relevant evidence—or evidence that would lead to relevant evidence—in the form of patient information intended to aid the plaintiff’s expert in forming an opinion concerning the estate’s allegations of understaffing in the nursing home at the time of the decedent’s fall. The plaintiff demonstrated that the subject information is general data gathered by nursing homes pursuant to Federal Law for Medicare and Medicaid reimbursements, and as such, the defendant could redact the patient’s names.

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SUMMARY JUDGMENT LIMITING THE OWNER’S LIABILITY TO $100,000 UPHELD UNDER §324.021(9(b)(3)

Walker v. Geico, 45 Fla. L Weekly D696 (Fla 4th DCA March 25, 2020):

A fatal accident occurred while the defendant driver was driving his stepfather’s vehicle. The owner garaged the vehicle at his stepson’s home, and the stepson driver was a permissive user of the vehicle.

The driver had three policies in effect at the time of the accident amounting to a total of $700,000 in coverage—well in excess of the $500,000 threshold requirement required by the statute to limit the vehicle owner’s liability.

When the plaintiff settled with the owner for his $250,000 Allstate policy, the settlement agreement stated it would not release the driver, and would serve only as a set off for any judgment that the driver would eventually owe to the plaintiff’s estate.

The plaintiff asserted that the owner’s Allstate policy covering him as a permissive user could not be counted towards the “driver’s” combined limits for the computation and assessment of the cap as to the owner. However, as the court found, nothing within the statute indicates that the vehicle owner’s $100,000 liability cap and the $500,000 combined limits for the permissive user, are mutually exclusive.

As such, because the permissive user did have the requisite $500,000 in combined property damage and bodily injury liability, the owners’ responsibility was capped at $100,000 under the statute.

ORDER ENFORCING SETTLEMENT AFFIRMED, WHERE APPELLANT FAILED TO PROVIDE A TRANSCRIPT OF THE EVIDENTIARY HEARING OR STIPULATED STATEMENT OF THE PROCEEDINGS.

Guillen v. Rodriguez, 45 Fla. L Weekly D703 (Fla. 3rd DCA March 25, 2020):

ERROR TO GRANT SUMMARY JUDGMENT IN FAVOR OF COUNTY WHERE THERE WERE MATERIAL ISSUES OF FACT AS TO WHETHER THE COUNTY’S ALLEGED NEGLIGENCE WAS THE CAUSE OF THE PLAINTIFF’S INJURIES.

Brannick v. Pinellas County, 45 Fla. L Weekly D708 (Fla. 2nd DCA March 25, 2020):

Plaintiff sought to recover damages for injuries he sustained after losing control of his bicycle and falling into a drainage ditch in an intersection owned and maintained by Pinellas County. Plaintiff alleged that the County had actual or constructive notice of an unsafe and dangerous condition in the shoulder area, negligently maintained the premises, and failed to warn the dangerous condition. According to the plaintiff’s expert, the shoulder area of the intersection lacked an adequate clear zone and recovery slope for bicyclists to retain or regain control of their bicycles, and the expert testified that the pavement was cracked, deteriorating and hazardous. He further opined that the slope at the edge of the pavement was unreasonably dangerous and far steeper than the slope was required by uniform minimum standards.

The County asserted that the plaintiff could not have established causation. However, the plaintiff’s memory of what occurred right before the accident was limited.

Because there were questions of fact regarding causation, (the plaintiff had fallen into the ditch after being struck by a car which the County believed was the cause of the accident), summary judgment was improper.

TRIAL COURT PROPERLY DISMISSED COMPLAINT FOR LEGAL MALPRACTICE BASED ON THE EXPIRATION OF THE STATUTE OF LIMITATIONS.

Letizia v. Ford, 45 Fla. Weekly D710 (Fla. 2nd DCA March 25, 2020):

Plaintiff had retained the defendant attorney to represent her in a pending bankruptcy proceeding. Less than a year later, the attorney sent the plaintiff a lengthy email detailing the history of the case, and noting the difficulties which had arisen between them. He concluded by advising that he had to withdraw from any future representation. He also noted how he had far exceeded the retainer paid, and said he would write off the loss for the fees in excess of that.

Five years later, the plaintiff sued the lawyer and his firm. She alleged that her contract required the attorney to represent her, and that the attorney had breached the provision of the retainer agreement requiring the arbitration without any fee disputes.

Because the issues raised by the plaintiff essentially amounted to a legal malpractice claim, the lawsuit was subject to a two-year time limitation, which was clearly not met. Dismissal of the case was therefore proper.

THE CLERK OF THE COURT DOES NOT OWE A LEGAL DUTY TO REDACT A VICTIM’S IDENTIFYING INFORMATION IN DOCUMENTS FILED BY THE COURT.

Clerk of the Circuit Court v. Doe, 45 Fla. L Weekly D737 (Fla. 2nd DCA March 27, 2020):

Because the clerk does not owe a duty of care pursuant to either Florida Rule of Judicial Administration 2.420(d)(1)(B)(xiii) or §119.071(2)(h)(1)(b), this juvenile victim of a crime whose identify was inadvertently revealed, had no cause of action against the Clerk for negligently reveling the information.

ERROR TO DENY SUMMARY JUDGMENT IN A MED MAL CASE IN FAVOR OF THE HOSPITAL WHERE THERE WERE DISPUTED ISSUES OF FACT AND CONFLICTING EXPERT OPINION ON THE ISSUE OF WHETHER THE HOSPITAL ADMINISTERED CONTAMINATED HEPARIN TO A PATIENT.

Dumigan v. Holmes Regional, 45 Fla. L Weekly D748 (Fla. 5th DCA March 27, 2020):

The court looked at the record, and focused on whether the affidavit showed evidence that would be admissible at trial because any questions regarding credibility or weight that the evidence compared to other evidence had to be left for the trier of fact. The court determined that there were issues of fact regarding the plaintiff’s ability to prove that the hospital had administered contaminated heparin to him, because it failed to record the lot numbers of the product that it gave to the plaintiff. As such, summary judgment was entered erroneously.