Unconscionable…but enforceable

FLORIDA LAW WEEKLY

VOLUME 47, NUMBER 18

CASES FROM THE WEEK MAY 6, 2022

ERROR TO DENY MOTION TO COMPEL ARBITRATION BASED ON UNCONSCIONABILITY–THRESHOLD FOR PROCEDURAL UNCONSCIONABILITY MET (BUT NOT FOR SUBSTANTIVE UNCONSCIONABILITY).

Addit, LLC v. Hengesbach, 47 Fla. L. Weekly D943 (Fla. 2^nd DCA Apr. 27, 2022):

Plaintiff’s estate filed a complaint against the ALF defendant, over injuries that the decedent sustained while a resident. The complaint asserted causes of action for negligence, wrongful death, breach of fiduciary duty, civil conspiracy, and violations of Florida’s Deceptive and Unfair Trade Practices Act.

The ALF moved to compel arbitration. The clause included a waiver of attorney’s fees and costs, a prohibition on the right to appeal, a limitation on discovery, a one-sided arbitration obligation, and a confidentiality provision.

The arbitration agreement also contained a severability clause, expressly providing that if any provision of the arbitration agreement was deemed invalid, the validity of the remaining parts would not be affected.

The trial court ruled that the arbitration agreement was unconscionable and therefore, unenforceable. The appellate court disagreed.

To succeed on an unconscionability claim, there must be a showing of both procedural and substantive unconscionability.

Procedural unconscionability relates to the manner in which a contract is made, and involves consideration of issues such as the bargaining power of the parties, and their ability to know and understand disputed contract terms. Procedural unconscionability also requires consideration of whether the important terms were hidden in a maze of fine print, and minimized by deceptive sale practices.

The court found that this contract was one of adhesion; a standardized contract offered on a “take it or leave it” basis. There was no opportunity for any meaningful negotiation and the arbitration agreement was inconspicuously located on page 15 of a 23-page agreement.

However, substantive unconscionability only occurs when the terms are so outrageously unfair as to shock the judicial conscience. The ALF defendants agreed that the attorneys’ fees provision and the right to appeal were both unconscionable, and should be severed from the agreement, along with the provision that limited discovery.

The court found that whether a confidentiality provision makes an arbitration provision unconscionable was an issue of first impression, and while many cases outside of Florida have found confidentiality to contribute to a finding of substantive unconscionability, this court did not. It noted that Florida courts acknowledge and enforce confidentiality agreements related to mediation (another alternative dispute resolution mechanism) and that Florida courts encourage alternative dispute resolution. Thus, the confidentiality was not substantively unconscionable.

The court then said that having determined that a number of the offending provisions were  substantively unconscionable, it had to address the severability clause. Notwithstanding so much unconscionability, the court found that by striking the “offending provisions,” it could preserve the alternative dispute forum.

Because it found that the offending provisions did not go to the heart of the arbitration agreement, and severance of those provisions would not result in a drastic re-write of the agreements and allow for the preservation of the parties’ intent to adjudicate their disputes in arbitration, the court reversed the trial court’s unconscionability finding, and remanded for arbitration as noted.

ERROR TO COMPEL PRODUCTION OF DEFENDANT’S EMERGENCY MEDICAL TREATMENT RECORDS FROM THE ACCIDENT, WITHOUT FIRST CONDUCTING AN IN-CAMERA REVIEW

Zawistowski v. Gibson, 47 Fla. L. Weekly D942 (Fla. 2^nd DCA Apr. 27, 2022):

The plaintiff and defendant were both injured in a car accident. The defendant driver was found unconscious at the accident scene and taken to the emergency room. Plaintiff asserted that the defendant was intoxicated at the time of the accident, but law enforcement did not perform a breathalyzer or a field sobriety test.

Plaintiff sought the defendant’s medical (and fire rescue) records via non-party subpoenas, from the date of loss until the date of discharge. The trial court denied the defendant’s motion for protective order, ordering the plaintiff to limit the request to those records generated during the time the defendant was transported and admitted to the hospital.

The defendant moved for reconsideration arguing that the trial court needed to do an in-camera inspection of her medical records, asserting her constitutional right to privacy, and further alleging that her medical condition was not at issue in the litigation.

The court granted the defendant’s petition for writ of certiorari, finding that the production of the records would constitute irreparable harm without an in-camera inspection. Whether the defendant was under the influence of drugs, alcohol, or medication or had an inciting medical event prior to the accident was relevant to the plaintiff’s claims, and the trial court departed from the essential requirements of law by ordering production of medical records without inspecting the records in-camera to prevent disclosure of information not relevant to the litigation.

PLAINTIFF HAD RIGHT TO POST-JUDGMENT INTEREST AT “LEGAL RATE” FROM THE DATE OF THE JUDGMENT UNTIL THE DATE THE JUDGMENT WAS SATISFIED WHEN THE FINAL JUDGMENT SPECIFICALLY INCLUDED LANGUAGE STATING “FOR WHICH LET EXECUTION ISSUE AT THE LEGAL RATE.”

Central Palm Beach Physicians v. MGA Insurance Co., 47 Fla. L. Weekly D951 (Fla. 4^th DCA Apr. 27, 2022):

In this PIP case, the court awarded the provider over $8,000 in fees and costs, and the insurance company moved for rehearing.

The provider then moved for pre-judgment and post-judgment interest on the attorney’s fees award. The provider also moved to enforce the payment of post-judgment interest on the final judgment. The trial court denied both motions seeking interest.

The provider moved for an award of accrued pre-judgment interest on attorney’s fees, and did so within the time permitted to seek re-hearing of the final judgment. Therefore, the trial court erred when it denied the timely filed motion seeking pre-judgment interest on the fee judgment.

Likewise, the trial court erroneously denied the provider’s post-judgment interest where the final judgment specifically included language stating “for which let execution issue at the legal rate.” The provider had a right to post-judgment interest at that legal rate from the date of the judgment until the date the judgment was satisfied.