SC09-768 – Angela I. Gessa, Etc. v. Manor Care Of Florida, Inc., Et Al.

SUPREME COURT CASES

Laws-info.com » Cases » Florida » Supreme Court » 2011 » SC09-768 – Angela I. Gessa, Etc. v. Manor Care Of Florida, Inc., Et Al.

State: Florida

Court: Supreme Court

Docket No: sc09-768

Case Date: 11/23/2011

Plaintiff: SC09-768 – Angela I. Gessa, Etc.

Defendant: Manor Care Of Florida, Inc., Et Al.

Preview:Supreme Court of Florida
No. SC09-768
ANGELA I. GESSA, etc.,
Petitioner,
vs.
MANOR CARE OF FLORIDA, INC., et al.,
Respondents.
[November 23, 2011]
PERRY, J.
Angela I. Gessa seeks review of the decision of the Second District Court of
Appeal in Gessa v. Manor Care of Florida, Inc., 4 So. 3d 679 (Fla. 2d DCA 2009),
on the ground that it expressly and directly conflicts with a decision of another
Florida district court of appeal on a question of law.1  We have jurisdiction.  See
art. V, § 3(b)(3), Fla. Const.
I. BACKGROUND
Angela Gessa was admitted as a resident to Manor Care of Florida, Inc., a
nursing home.  Upon admission, her daughter, acting as her attorney-in-fact, signed
1.  See infra notes 5-8.

admissions documents that included an arbitration agreement.  During her stay,
Gessa filed suit against Manor Care, alleging negligence, violation of resident's
rights, and breach of fiduciary duty.  Manor Care moved to compel arbitration.  At
the hearing on the motion, Gessa argued that the arbitration agreement was
unconscionable and contrary to public policy due to the limitation of liability
provisions in the agreement that capped noneconomic damages at $250,000 and
waived punitive damages.  The trial court, however, granted the motion to compel,
ruling that, because any offensive clauses can be severed, the agreement was not
unconscionable.  The court declined to rule on the public policy issue, leaving it
for the arbitrator.  Gessa appealed, arguing that the limitation of liability provisions
violated public policy and were not severable.  The district court affirmed,
agreeing with the trial court that the provisions were severable.  Also, the district
court did not rule on the public policy issue, leaving it for the arbitrator.  Gessa
sought discretionary review, which we granted.
Gessa raises several issues, including the following: (i) whether the
limitation of liability provisions are severable, (ii) whether the court or the
arbitrator must decide whether the arbitration agreement violates public policy, and
(iii) whether the limitation of liability provisions violate public policy.  Manor
Care, in counterpoint, contends that the United States Supreme Court‟s recent
- 2 -

decision in Rent-A-Center, West, Inc. v. Jackson, 130 S. Ct. 2772 (2010), is
applicable here and entitles Manor Care to relief on its motion to compel.
As explained more fully below, our decision in this case is controlled in part
by our recent decision in Shotts v. OP Winter Haven, Inc., No. SC08-1774 (Fla.
Nov. 23, 2011), another nursing home arbitration case.  Pursuant to our reasoning
in that case, we hold that the district court below erred in the following respects: (i)
in ruling that the limitation of liability provisions in this case, which place a
$250,000 cap on noneconomic damages and waive punitive damages, are
severable; (ii) in failing to rule that the court, not the arbitrator, must decide
whether the arbitration agreement violates public policy; and (iii) in failing to rule
that the above limitation of liability provisions violate public policy.  As in Shotts,
we also conclude that the United States Supreme Court‟s decision in Jackson is
inapplicable here.
A.  Facts and Procedural History
The relevant facts of this case are set forth in the district court decision
under review:
Angela I. Gessa, by and through Miriam G. Falatek, her
attorney-in-fact, challenges the trial court's order granting Manor Care
of Florida, Inc.'s motion to compel arbitration in Gessa's action
against Manor Care for negligence, violation of resident's rights, and
breach of fiduciary duty. . .
Gessa was admitted as a resident of Manor Care of Carrollwood
on two occasions.  Upon each admission, she or Falatek signed
admissions documents that included an arbitration agreement.  One
- 3 -

document, entitled “Admission Agreement,” was a nine-page
document to which Attachments A through I were appended.  In
addition, a form entitled “Attestation of Admission Agreement and
Attachment” was executed.  However, the crux of this appeal centers
on the form that bears no specific title but is captioned with the
following warning: “THIS AGREEMENT CONTAINS A WAIVER
OF STATUTORY RIGHTS. PLEASE READ CAREFULLY.”  This
document was not designated as an attachment to the Admissions
Agreement, nor does the attestation form include any reference to it.
The document is composed of two sections: A. Arbitration
Provisions and B. Limitation of Liability Provision[s].  The last
paragraph of section A reads: “The Limitation of Liability
Provision[s] below [are] incorporated by reference into this
Arbitration Agreement.”  At the time of Gessa's first admission, this
document was signed by a representative of Manor Care and by
Gessa.  Falatek and a Manor Care representative signed it upon
Gessa's return to the facility.
During her second stay, Gessa filed suit against Manor Care
under chapter 400, Florida Statutes (2004), the Nursing Home
Residents Act (the Act).  In her complaint, Gessa sought damages for
the improper treatment she received at the facility.  In response to the
complaint, Manor Care moved to compel arbitration pursuant to the
parties' arbitration agreement.  Gessa filed her memorandum in
opposition to the motion, arguing that the arbitration agreement was
both substantively and procedurally unconscionable.  Additionally,
Gessa argued that the arbitration agreement was unenforceable
because it was contrary to public policy.  These arguments were
premised on the terms of the limitation of liability provision[s]
contained in section B of the document that the parties signed during
the admissions process.   [These provisions] prohibited the award of
punitive damages and capped any award of noneconomic damages at
$250,000.  Gessa argued that these limitations were contrary to the
rights specifically granted by the Act, and that they invalidated the
entire agreement to arbitrate.  Gessa repeated these arguments at the
hearing held on the motion to compel arbitration.
Gessa, 4 So. 3d at 680 (citation omitted).
- 4 -

The trial court, in its written order, granted the motion to compel, concluding
that the agreement was severable and was not unconscionable:
This cause came before the Court on March 1, 2007, concerning
the Defendant‟s Motion to Stay Proceedings and to Compel
Arbitration.  The Court, having reviewed the memoranda, considered
the arguments presented, and being otherwise fully advised, grants the
Defendant‟s Motion to Stay Proceedings and Compel Arbitration.
The Court finds no procedural unconscionability, as there was a three
day right of rescission contained in the arbitration agreement.  Further,
the agreement was not substantively unconscionable because
offensive clauses can be severed, as they are not integral to the
contract and are separate from the arbitration provision.
(Emphasis added.)  The court declined to rule on the public policy issue, leaving it
for the arbitrator.
Gessa appealed, arguing that the limitation of liability provisions violated
public policy and were not severable.  The district court affirmed, agreeing with
the trial court that the provisions were severable.  Also, the district court declined
to rule on the public policy issue, leaving it for the arbitrator:
Here, the trial court reviewed the document that contained the
arbitration agreement and limitation provision[s] and determined that
the limitation [provisions were] not an integral part of the parties'
agreement to settle claims by arbitration.  This factual finding is
supported by competent evidence.  Based on the test defined in Local
No. 234 [v. Henley & Beckwith, Inc., 66 So. 2d 818, 821-22 (Fla.
1953)], we agree with the trial court that the limitation provision[s]
[are] severable, even though the contract lacks a specific severability
clause.  Although the inclusion of such . . . provision[s] would
expressly demonstrate the intent of the parties, pursuant to Local No.
234, the trial court is not bound by the inclusion or omission of such a
clause when determining the issue of severability.  Accordingly, the
- 5 -

trial court, having found the limitations provision[s] here to be
severable, properly directed that the case proceed to arbitration.
Gessa, 4 So. 3d at 682.  Gessa sought discretionary review, which we granted.
Gessa raises several claims,2 and we address three of them.3
B.  Arbitration Agreement
The arbitration agreement that Gessa‟s daughter signed when Gessa was
admitted to Manor Care bore no title.  Instead, the document bore the following
heading: “THIS AGREEMENT CONTAINS A WAIVER OF STATUTORY
RIGHTS.  PLEASE READ CAREFULLY.”  The document was divided into four
parts: A, B, C and D.  Part A was titled “ARBITRATION PROVISIONS” and was
approximately three and one-half pages long.  The following provisions were
included at various points in Part A:
2.  Gessa raises the following claims: (a) the public policy issue is a gateway
issue, and it must be addressed by the court, not the arbitrator; (b) the present
district court decision conflicts with decisions from the other district courts, which
have uniformly refused to enforce limitations of remedies provisions in nursing
home and assisted living facility arbitration agreements because they defeat the
remedial purposes of chapter 400, Florida Statutes; (c) the present district court
decision conflicts with decisions of this Court and other district courts on the issue
of whether the offending limitations provisions are severable; and (d) the present
district court decision conflicts with decisions of this Court and other district courts
on the issue of whether an arbitration agreement that contains unenforceable terms
that violate public policy renders the entire agreement void.
3.  We address, in the following order, claims (c), (a), and (b).  We decline
to address the other claim raised by Gessa.
- 6 -

—Except as expressly set forth herein, the provisions of the
Florida Arbitration Code, Florida Statutes §§ 682.01, et. seq., shall
govern the arbitration.
—Discovery in the arbitration proceeding shall be governed by
the Florida Rules of Civil Procedure [except as otherwise provided
herein].
—[T]he only depositions allowed shall be of experts and any
treating physicians.  No other individuals may be deposed.
—The arbitrator shall apply the Florida Rules of Evidence and
Florida Rules of Civil Procedure in the arbitration proceeding except
where otherwise stated in this Agreement.  Also, the arbitrator shall
apply, and the arbitration award shall be consistent with, Florida law
except as otherwise stated in this Agreement.
—The arbitrator‟s fees and costs associated with the arbitration
shall be paid by the Facility . . .
—The parties shall bear their own attorney‟s fees and costs and
hereby expressly waive any statutory right to recover attorney fees or
costs . . .
—The parties agree to maintain the confidentiality of the
arbitration proceeding in all respects . . .
Significantly, at the conclusion of Part A, just before the beginning of Part B, the
document provided:
—The Limitation of Liability Provision[s] below [are]
incorporated by reference into this Arbitration Agreement.
(Emphasis added.)
Part B of the document, which was approximately one-half page in length,
was titled “LIMITATION OF LIABILITY PROVISION[S]: Read Carefully
Before Signing,” and it contained four provisions, one of which placed a $250,000
cap on noneconomic damages, and another of which called for a waiver of punitive
damages.  Part B provided as follows in full:
- 7 -

1.1  The parties to this Agreement understand that the purpose
of [these] “Limitation of Liability Provision[s]” is to limit, in advance,
each party‟s liability in relation to this Agreement.
1.2  Liability for any claim brought by a party to this
Agreement against the other party, including but not limited to a claim
by the Facility for unpaid nursing home charges, or a claim by a
Resident, arising out of the care or treatment received by the Resident
at the Facility, including, without limitation, claims for medical
negligence or violation(s) of Florida Statutes §§ 400.022, et seq.,
arising from simple or gross negligence, shall be limited as follows:
1.  Net economic damages shall be awardable, including, but
not limited to, past and future medical expenses, off-set by any
collateral source payments; any outstanding liens shall be satisfied
from the damages awarded.
2.  Non-economic damages shall be limited to a maximum of
$250,000.
3.  Interest on unpaid nursing home charges shall not be
awarded.
4.  Punitive damages shall not be awarded.
The parties hereto each acknowledge that these limitations of liability
are fair and reasonable under the circumstances.
(Emphasis added.)  Part C of the document, which was a brief paragraph, was titled
“WITHDRAWAL PERIOD,” and it provided that each party shall have three
business days in which to cancel the agreement.  And Part D, which was also a
brief paragraph, was titled “FULL AGREEMENT,” and it stated that the
agreement constitutes the entire agreement between the parties.
II.  ANALYSIS
As noted above, this case is controlled in part by our decision in Shotts v.
OP Winter Haven, Inc., No. SC08-1774 (Fla. Nov. 23, 2011), and although the two
- 8 -

cases are similar, they differ in several respects.  First, whereas the limitation of
liability provisions in the present case include a $250,000 cap on noneconomic
damages and a waiver of punitive damages, the limitations of remedies provisions
in Shotts included the imposition of the AHLA rules4 and a waiver of punitive
damages.  And second, whereas the present arbitration agreement contains no
severability clause, the agreement in Shotts contained such a clause.
A.  Severability
In this claim, Gessa contends that the district court erred in ruling that the
limitation of liability provisions in the present case are severable.  To the extent
this claim is based on written materials before this Court, the issue is a pure
question of law, subject to de novo review.  See Aills v. Boemi, 29 So. 3d 1105,
1108 (Fla. 2010) (“Because this is a question of law . . . the standard of review is
de novo.”).  In its opinion, the district court below indicated that it agreed with the
trial court‟s ruling that “offensive clauses can be severed.”  Gessa contends,
however, that the district court erred in this respect—she contends that the
limitation of liability provisions violate public policy and are not severable.  We
agree.
4.  American Health Lawyers Association Alternative Dispute Resolution
Service Rules of Procedure for Arbitration.
- 9 -

This Court addressed a similar scenario in Shotts, where we held that one of
the limitations of remedies provisions in that case—the provision called for the
imposition of the AHLA rules—was not severable.  Because it was unnecessary to
do so, we did not address whether the second provision in that case—a waiver of
punitive damages—was severable.  There, we noted that we had established a
general standard for determining whether a contractual provision is severable from
the whole, and that standard provides in part: “[A] bilateral contract is severable
where the illegal portion of the contract does not go to its essence, and where, with
the illegal portion eliminated, there still remains of the contract valid legal
promises on one side which are wholly supported by valid legal promises on the
other.”  Local No. 234 v. Henley & Beckwith, Inc., 66 So. 2d 818, 821-22 (Fla.
1953) quoted in Shotts, No. SC08-1774, slip op. at 33.
In Shotts, we then reviewed the decisional law in this area and applied the
above standard from Local No. 234 to the limitations of remedies provision in
Shotts.  We ruled as follows:
Based on the foregoing, we conclude that the limitations of
remedies provision in the present case that calls for the imposition of
the AHLA rules is not severable from the remainder of the agreement.
Although the arbitration agreement in this case contains a severability
clause, the AHLA provision goes to the very essence of the
agreement.  If the provision were to be severed, the trial court would
be forced to rewrite the agreement and to add an entirely new set of
procedural rules and burdens and standards, a job that the trial court is
not tasked to do.  See Local No. 234, 66 So. 2d at 821-22.
- 10 -

Further, if the AHLA provision were severed, the trial court
would be hard pressed to conclude with reasonable certainty that, with
the illegal provision gone, “there still remains of the contract valid
legal promises on one side which are wholly supported by valid legal
promises on the other” id.—particularly, when those legal promises
are viewed through the eyes of the contracting parties.  See generally
id. at 822. . .                                                                       .  We note that the trial court below ruled that the
limitations of remedies provisions in the present case are not
severable—and we agree with that assessment.  Under the above
standard of review, we hold that the district court below erred in
ruling that the AHLA provision in this case is severable.
Shotts, No. SC08-1774, slip op. at 38-39.
As in Shotts, we conclude that the limitation of liability provisions in the
present case, which place a $250,000 cap on noneconomic damages and waive
punitive damages, are not severable from the remainder of the agreement.  As
noted above, the limitation of liability provisions are contained in Part B of the
arbitration agreement, which is titled “LIMITATION OF LIABILITY
PROVISION[S],” and the first section in part B provides as follows: “The parties
to this Agreement understand that the purpose of [these] „Limitation of Liability
Provision[s]‟ is to limit, in advance, each party‟s liability in relation to this
Agreement.”  When viewed jointly, the above two provisions place a clear upper
limit on noneconomic damages and foreclose the prospect of punitive damages
altogether.  The extent of liability under the agreement is thus, within bounds,
reasonably foreseeable.  Without these provisions, on the other hand, the extent of
- 11 -

liability would be open-ended.  In this respect, the two provisions constitute the
financial heart of the agreement.
As in Shotts, we conclude that if the present provisions were to be severed,
“the trial court would be hard pressed to conclude with reasonable certainty that,
with the illegal provision[s] gone, „there still remains of the contract valid legal
promises on one side which are wholly supported by valid legal promises on the
other‟ id.—particularly, when those legal promises are viewed through the eyes of
the contracting parties.”  Shotts, No. SC09-1774, slip op. at 38 (quoting Local No.
234, 66 So. 2d at 821-22).  Thus, contrary to the ruling below, these limitation of
liability provisions, which place a $250,000 cap on noneconomic damages and
waive punitive damages, are not severable from the arbitration agreement.  This
conclusion is consistent with the weight of authority in Florida.5
5.  For instance, the First District Court of Appeal has held that a limitations
of remedies provision is severable but only where the agreement itself contained a
severability clause.  See Alterra Healthcare Corp. v. Estate of Linton, 953 So. 2d
574 (Fla. 1st DCA 2007) (finding severability where agreement had a severability
clause, capped noneconomic damages at $250,000, and precluded punitive
damages).  The Fourth District Court of Appeal has held that a limitations of
remedies provision is not severable, regardless of whether the agreement did or did
not contain a severability clause.  See Place at Vero Beach, Inc. v. Hanson, 953 So.
2d 773 (Fla. 4th DCA 2007) (rejecting severability where agreement had a
severability clause and a provision adopting AHLA rules); Lacey v. Healthcare &
Retirement Corp. of Am., 918 So. 2d 333 (Fla. 4th DCA 2005) (rejecting
severability where agreement capped noneconomic damages at $250,000,
precluded punitive damages, and had no severability clause).  And the Fifth
District Court of Appeal has held that such a provision is not severable, regardless
of whether the agreement contained a severability clause or not.  See Fletcher v.
- 12 -

Under the above standard of review, we hold that the district court below
erred in ruling that the limitation of liability provisions in this case are severable.
B.  Court or Arbitrator
In this claim, Gessa contends that the district court erred in affirming the
trial court‟s order which, in effect, allowed the arbitrator, not the court, to decide
whether the arbitration agreement violates public policy.  This issue is a pure
question of law, subject to de novo review.  See Aills v. Boemi, 29 So. 3d 1105,
1108 (Fla. 2010).  We agree with Gessa.
This issue has already been decided in Gessa‟s favor in Shotts.  There, we
held that the court, not the arbitrator, must decide whether an arbitration agreement
violates public policy:
[T]his Court in Seifert [v. U.S. Home Corp., 750 So. 2d 633 (Fla.
1999),] held that it was for the court, not the arbitrator, to determine
“whether a valid written agreement to arbitrate exists,” Seifert, 750
So. 2d at 636 (emphasis added), and we later explained the meaning
of the term “valid” in this context, with respect to arbitration and
public policy: “No valid agreement exists if the arbitration clause is
unenforceable on public policy grounds.”  Global Travel [Marketing,
Inc. v. Shea, 908 So. 2d 392, 398 (Fla. 2005)].  Thus, under Siefert
and Global Travel, it is incumbent on the court, not the arbitrator, to
determine whether an arbitration agreement violates public policy.
Huntington Place Ltd. P‟ship, 952 So. 2d 1225 (Fla. 5th DCA 2007) (rejecting
severability where contract capped noneconomic damages at $250,000, precluded
punitive damages, and had a severability clause); SA-PG-Ocala, LLC v. Stokes,
935 So. 2d 1242 (Fla. 5th DCA 2006) (rejecting severability where agreement
contained provisions that capped noneconomic damages at $250,000 and precluded
punitive damages, and had no severability clause).
- 13 -

Shotts, No. SC08-1774, slip op. at 24.  Again, this conclusion is consistent with the
weight of authority in Florida,6 and even the district court below—the Second
District Court of Appeal—now concedes this.7
Under the above standard of review, we hold that the district court below
erred in failing to rule that the court, not the arbitrator, must decide whether the
arbitration agreement violates public policy.
6.  See, e.g., Hanson, 953 So. 2d 773 (affirming the trial court‟s ruling that
the arbitration agreement conflicted with the Florida Nursing Home Residents Act
and was unenforceable); Fletcher, 952 So. 2d 1225 (reversing the trial court‟s
ruling compelling arbitration and instead holding that a limitations of remedies
provision in a nursing home contract violates public policy and is void); Linton,
953 So. 2d at 578 (“The issue of whether the provision violated public policy goes
to the first Seifert inquiry: whether there was a valid agreement to arbitrate.  This is
a question for the trial court.”); Alterra Healthcare Corp. v. Bryant, 937 So. 2d 263,
267 (Fla. 4th DCA 2006) (“[T]he trial court properly considered whether the
arbitration and limitation of liability provisions were valid.”); Stokes, 935 So. 2d at
1243 (“It is the court's obligation, in deciding a motion to compel arbitration, to
determine whether a valid written agreement to arbitrate exists.”); Lacey, 918 So.
2d 333 (reversing the trial court‟s ruling compelling arbitration and instead holding
that a limitations of remedies provision in a nursing home contract violates public
policy and is void); Blankfeld v. Richmond Health Care, Inc., 902 So. 2d 296 (Fla.
4th DCA 2005) (same).
7.  See Jaylene, Inc. v. Steuer, 22 So. 3d 711, 713 (Fla. 2d DCA 2009) (“We
note that we are in conflict with decisions by the First, Fourth, and Fifth Districts
holding that the trial court initially must determine whether an arbitration
agreement's limitation on statutory remedies renders the agreement unenforceable
on public policy grounds.”).
- 14 -

C.  Limitation of Liability Provisions
In this claim, Gessa contends that the district court erred in failing to rule
that the limitation of liability provisions in the present case violate public policy.
This issue is a pure question of law, subject to de novo review.  See Aills v. Boemi,
29 So. 3d 1105, 1108 (Fla. 2010).  As noted above, the limitation of liability
provisions in this case call for a $250,000 cap on noneconomic damages and a
waiver of punitive damages.  The district court below did not decide whether these
provisions violate public policy, but rather left the matter to the arbitrator.  Gessa
contends that the district court erred in this respect—she contends that the
provisions violate public policy, and that the district court should have so ruled.
We agree.
As noted above, this Court addressed a similar scenario in Shotts, where the
limitations of remedies provisions included the imposition of the AHLA rules and
a waiver of punitive damages.  There, we ruled as follows:
Based on the foregoing, we conclude that the limitations of
remedies provisions in the present case violate public policy, for they
directly undermine specific statutory remedies created by the
Legislature.  See §§ 400.022, 400.023, Fla. Stat. (2003).  This
conclusion comports with the vast weight of authority in Florida, as
discussed above.  The Fourth District Court of Appeal in Romano v.
Manor Care, Inc., 861 So. 2d 59 (Fla. 4th DCA 2003), explained
succinctly:
Sections 400.022 and 400.023 are remedial
statutes, designed to protect nursing home residents.  The
Nursing Home Resident's Rights Act, section 400.022,
- 15 -

was originally enacted after a Dade County Grand Jury
investigation of nursing homes revealed substantial elder
abuse occurring in many nursing homes without any
remedial action being taken.  The law set up rights of
residents, including the right to appropriate medical care,
and requires nursing homes to make public statements of
the rights and responsibilities of the residents.  To
enforce these rights, the legislature provided each
resident with a cause of action for their violation. . .
The legislature also provided for the award of punitive
damages for gross or flagrant conduct or conscious
indifference to the rights of the resident.  Moreover, there
was no cap on pain and suffering damages in the statute.
Romano, 861 So. 2d at 63 (emphasis added) (citations omitted).
In light of the recognized need for these remedies and the
salutary purpose they serve, we conclude that any arbitration
agreement that substantially diminishes or circumvents these remedies
stands in violation of the public policy of the State of Florida and is
unenforceable.
Shotts, No. SC08-1774, slip op. at 31 (first emphasis in original) (second emphasis
added).
As in Shotts, we conclude that the limitation of liability provisions in the
present case violate public policy.  As noted above, the nursing home statute
provides for the award of   “punitive damages for gross or flagrant conduct or
conscious indifference to the rights of the resident.  Moreover, there was no cap on
pain and suffering damages in the statute.”  In contrast, the limitation of liability
provisions in the present case eliminate punitive damages altogether and severely
restrict damages for pain and suffering.  These provisions directly frustrate the
remedies created by the statute.  The provisions eviscerate the remedial purpose of
- 16 -

the statute, or, in the language of Shotts, they “substantially diminish[] or
circumvent[] these remedies.”  Shotts, No. SC08-1774, slip op. at 31.  Thus, these
limitation of liability provisions, which place a $250,000 cap on noneconomic
damages and waive punitive damages, violate the public policy of the State of
Florida and are unenforceable.  Again, this conclusion is consonant with the weight
of authority in Florida.8
Under the above standard of review, we hold that the district court below
erred in failing to rule that the limitation of liability provisions in the present case
violate public policy.
8.  See, e.g., Linton, 953 So. 2d at 578 (“The arbitration agreement in the
present case defeats the remedial purpose of the Act by eliminating punitive
damages and capping noneconomic damages, so the trial court correctly ruled that
it was void as against public policy.”); Bryant, 937 So. 2d at 266 (“This court has
held repeatedly that arbitration agreements eliminating punitive damages and
capping non-economic damages defeat the remedial purpose of the NHRA and are,
therefore, void as against public policy.”); Stokes, 935 So. 2d at 1243 (“It would be
against public policy to permit a nursing home to dismantle the protections
afforded patients by the Legislature through the use of an arbitration agreement.”);
Lacey, 918 So. 2d at 334 (“To the extent that a contractual limitation defeats the
purpose of a remedial statute, the limitation may be found void as a matter of
law. . .                                                                                   [The arbitration agreement here] eliminates punitive damages, which are
expressly provided for in the Act.  It also caps non-economic damages at $250,000,
which would seem to substantially affect the compensatory damage remedy.
These provisions are thus void under the public policy rationale utilized in this
district.”); Romano v. Manor Care, Inc., 861 So. 2d 59, 62 (Fla. 4th DCA 2003)
(“Although parties may agree to arbitrate statutory claims, even ones involving
important social policies, arbitration must provide the prospective litigant with an
effective way to vindicate his or her statutory cause of action in the arbitral forum.
When an arbitration agreement contains provisions which defeat the remedial
provisions of the statute, the agreement is not enforceable.”) (citations omitted)).
- 17 -

D.  Rent-A-Center v. Jackson
Approximately two weeks after this Court heard oral argument in the present
case, the United States Supreme Court issued its decision in Rent-A-Center, West,
Inc. v. Jackson, 130 S. Ct. 2772 (2010), in which that Court addressed the issue of
whether the court or the arbitrator must determine whether an arbitration
agreement is unconscionable (Jackson contended that the agreement was
unconscionable under Nevada law because it required the splitting of arbitration
fees) where the agreement contained a provision, known as a delegation provision,
in which the parties specifically agreed to arbitrate the enforceability of the
arbitration agreement.  The United States Supreme Court held that, where there has
been no specific challenge to the delegation provision, the arbitrator, not the court,
must decide the issue.
After Jackson was decided, Manor Care filed in this Court a motion to
submit supplemental briefing addressing whether Jackson is applicable to the
present case.  This Court granted the motion and ordered the parties to submit
supplemental briefs on an expedited schedule.  In its supplemental brief, Manor
Care contends that under Jackson the present case must proceed to arbitration
because Gessa did not challenge the agreement to arbitrate but rather challenged
the limitation of liability provisions, which are separate from that agreement.  We
disagree.
- 18 -

In Jackson, after Antonio Jackson filed an employment discrimination claim
against Rent-A-Center, West, Inc., which was his former employer, Rent-A-Center
filed a motion to compel arbitration pursuant to the Mutual Agreement to Arbitrate
Claims that Jackson had signed as a condition of his employment.  The agreement
contained a delegation provision in which the parties agreed to arbitrate the
enforceability of the agreement.  Jackson did not challenge the delegation
provision specifically; rather, he opposed the motion on the ground that the entire
arbitration agreement was unconscionable.  The federal district court granted the
motion, and the circuit court of appeals reversed.  The United States Supreme
Court granted certiorari and reversed, ruling that the delegation provision was
controlling and should have been challenged.
In the present case, because the arbitration agreement contained no
delegation provision, there was no such provision for Gessa to challenge.  Instead,
she challenged the arbitration agreement itself and this included the limitation of
liabilities provisions, which had been incorporated by reference into the agreement.
This was the proper course of action under section 2 of the Federal Arbitration Act,
for unlike the situation in Jackson, the entire arbitration agreement in the present
case operated as the “written provision . . . to settle by arbitration a controversy,”
under section 2.  See 9 U.S.C. § 2 (2006).  Specifically, because the agreement
contained no delegation provision, Jackson is inapplicable here.
- 19 -

III.  CONCLUSION
Based on the foregoing, we conclude that the district court in the present
case erred in the following respects: (i) in ruling that the limitation of liability
provisions, which place a $250,000 cap on noneconomic damages and waive
punitive damages, are severable; (ii) in failing to rule that the court, not the
arbitrator, must decide whether the arbitration agreement violates public policy;
(iii) in failing to rule that the above limitation of liability provisions violate public
policy.  We also conclude that the United States Supreme Court‟s decision in Rent-
A-Center, West, Inc. v. Jackson, 130 S. Ct. 2772 (2010), is inapplicable here.
We quash the decision of the district court in Gessa v. Manor Care of
Florida, Inc., 4 So. 3d 679 (Fla. 2d DCA 2009).
It is so ordered.
PARIENTE, LEWIS, QUINCE, and LABARGA, JJ., concur.
POLSTON, J., dissents with an opinion, in which CANADY, C.J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
POLSTON, J., dissenting.
The majority errs by holding that the arbitration agreement is not
enforceable because challenged limitations of remedies within the agreement
violate public policy.  Contrary to the majority‟s ruling, the challenged limitations
may be severed from the arbitration provisions so that the arbitration should go
- 20 -

forward as agreed by the parties.  Moreover, the Florida Legislature, not this Court,
should decide whether Florida‟s public policy has been violated.  Because the
Florida Legislature has addressed the enforceability of other limitations but not
these, the Court should not void the contract.  The Court should not be a policy
maker.
Therefore, I respectfully dissent.
I.  BACKGROUND
The arbitration agreement is a stand-alone agreement, separate from the
admissions agreement signed by the parties.  The arbitration agreement explicitly
provides that the Florida Arbitration Code applies and that it pertains to “[a]ny and
all claims or controversies . . . arising out of or in any way relating to the
Resident‟s stay at the facility.”  It states:
A.    Arbitration Provisions
1.1    Any and all claims or controversies between the Facility
and the Resident arising out of or in any way relating to the Resident‟s
stay at the Facility, including disputes regarding interpretation of this
Agreement, whether arising out of State or Federal law, and whether
based upon statutory duties, breach of contract, tort theories or other
legal theories (including, without limitation, any claim based on
Florida Statutes §§400.022, 400.023, 400.428, 400.429, or a claim for
unpaid nursing home or related charges), shall be submitted to final
and binding arbitration.  Except as expressly set forth herein, the
provisions of the Florida Arbitration Code, Florida Statutes §§682.01,
et. seq., shall govern the arbitration.  Each party hereby waives its
right to file a court action for any matter covered by this Agreement.
- 21 -

1.9  The arbitration award shall be made and delivered in
accordance with Section 682.09 of the Florida Arbitration Code, and
shall be delivered to the parties and their counsel no later than thirty
(30) days following the conclusion of the arbitration.  The award shall
set forth in detail the arbitrator‟s findings of fact and conclusions of
law.
The Petitioner challenged this arbitration agreement as unenforceable as contrary
to public policy because it includes a limitation of damages otherwise available by
Florida‟s statutes.  Specifically, the Petitioner challenged the provisions that
provide that (i) “[n]on-economic damages shall be limited to a maximum of
$250,000,” and (ii) “[p]unitive damages shall not be awarded.”
The trial court ruled that these provisions may be severed from the
agreement, even though there is no separate severability provision, and that the
remaining provisions, including arbitration, are enforceable.  See Gessa v. Manor
Care of Fla., Inc., 4 So. 3d 679, 681 (Fla. 2d DCA 2009).  The trial court did not
determine whether the challenged provisions violate public policy, but it did rule
that the arbitration agreement was neither procedurally nor substantively
unconscionable.  Id.  The trial court granted Manor Care of Florida‟s motion to
compel arbitration.  Id. at 680.
On appeal, the Second District Court of Appeal affirmed the trial court‟s
order compelling arbitration.  Id.  The Second District characterized the trial
court‟s ruling regarding severability as a finding of fact and determined that there
was competent substantial evidence to support it by reviewing the agreement.  See
- 22 -

id. at 681.  It held that “the trial court, having found the limitations provision here
to be severable, properly directed that the case proceed to arbitration.”  Id. at 682.
Before this Court, the Petitioner argues that Second District erred in ruling
that the arbitrator, not the court, should decide whether the arbitration agreement is
enforceable because it includes limitations of remedies that violate public policy.
II.  ANALYSIS
In Volt Information Sciences, Inc. v. Board of Trustees of the Leland
Stanford Junior University, 489 U.S. 468, 477 (1989), the United States Supreme
Court ruled that parties to a contract may choose another state‟s arbitration law
without preemption by the Federal Arbitration Act (FAA), except to the extent the
state law undermines the goals and policies of the FAA.  Accordingly, the parties‟
contract should be enforced according to the Florida Arbitration Code as expressly
provided for, except to the extent it conflicts with the FAA.9
Generally, under Florida and federal arbitration law, if enforceability of the
arbitration agreement, rather than the contract as a whole, is challenged, then the
court rather than the arbitration panel will decide enforceability.  See Granite Rock
Co. v. Int‟l Bhd. of Teamsters, 130 S. Ct. 2847, 2856 (2010); O‟Keefe Architects,
Inc. v. CED Constr. Partners, 944 So. 2d 181, 184-85 (Fla. 2006).  However, the
9.  The FAA applies because the transaction undeniably involves interstate
commerce.  See Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265 (1995); 9
U.S.C. § 2 (2006).
- 23 -

arbitration agreement may delegate to the arbitration panel the power to decide the
issue of enforceability of the arbitration agreement, which should be enforced.  See
Rent-A-Center, W., Inc. v. Jackson, 130 S. Ct. 2772 (2010);10 ATP Flight Sch.,
LLC v. Sax, 44 So. 3d 248, 252 (Fla. 4th DCA 2010).  If there is no delegation to
arbitration, but there are challenged provisions that may be severed from the
arbitration provisions, then the matter should be decided by arbitration since the
matter will be arbitrated in any event.  See Musnick v. King Motor Co. of Ft.
Lauderdale, 325 F.3d 1255, 1261 (11th Cir. 2003); ManorCare Health Servs. v.
Stiehl, 22 So. 3d 96, 99-100 (Fla. 2d DCA 2009).  If there is no delegation and no
severance of challenged provisions, then the court should decide whether the
arbitration agreement is enforceable.  See Howsam v. Dean Witter Reynolds, 537
U.S. 79, 83 (2002); Anders v. Hometown Mortg. Servs., 346 F.3d 1024, 1031
(11th Cir. 2003).
Severability
Severability of the contract is a matter of state law, therefore is controlled by
Florida law.  See Terminix Int‟l Co. v. Palmer Ranch Ltd. P‟ship, 432 F.3d 1327,
10.  I agree that, in this case, arbitration agreement language does not
delegate the petitioner‟s challenge to the enforceability of the arbitration agreement
to arbitration.  Therefore, Jackson does not apply, even if, without deciding the
issue, the FAA requires the Jackson analysis over any contrary state law.
- 24 -

1331 (11th Cir. 2005).11  Severability has long been recognized in Florida‟s law of
contracts and is determined by the intent of the parties.  See Local 234 of United
Ass‟n of Journeymen & Apprentices v. Henley & Beckwith, Inc., 66 So. 2d 818,
822 (Fla. 1953) (“Whether a contract is entire or divisible depends upon the
intention of the parties.”); see also Frankenmuth Mut. Ins. Co. v. Escambia Cnty.,
289 F.3d 723, 728 (11th Cir. 2002) (applying Florida law and explaining that “a
bilateral contract is severable where the illegal portion of the contract does not go
to its essence, and where, with the illegal portion eliminated, there still remains of
the contract valid legal promises on one side which are wholly supported by valid
legal promises on the other”) (quoting 6 Samuel Williston, The Law of Contracts,
§ 1782 (rev. ed. 1938))).
Who decides whether severance is permissible in this contract—the court or
arbitrator?  As earlier stated, the enforceability of the arbitration agreement, not the
whole admissions agreement, is challenged and there is no delegation clause for
the matter to be decided by arbitration.  Accordingly, the court, rather than the
11.  The severance of unenforceable provisions of a contract as a matter of
state law is not to be confused with the severability doctrine decided under federal
law that treats arbitration provisions of a contract separately from the contract as a
whole for purposes of the “who decides” issue.  See Jackson, 130 S. Ct. at 2778
(“[A]s a matter of substantive federal arbitration law, an arbitration provision is
severable from the remainder of the contract.”) (quoting Buckeye Check Cashing,
Inc. v. Cardegna, 546 U.S. 440, 445 (2006)); see also Buckeye, 546 U.S. at 447
(“[T]he rule of severability . . . ultimately arises out of § 2 . . .                      .”).
- 25 -

arbitration panel, must decide severability here.  See Howsam, 537 U.S. at 83.
But, under both Florida and federal arbitration law, if the challenged provisions are
severable, then the case should proceed to arbitration because the matter will be
determined in arbitration.  See Musnick, 325 F.3d at 1261; Stiehl, 22 So. 3d at 99-
100; Bland ex rel. Coker v. Health Care & Ret. Corp. of Am., 927 So. 2d 252, 258
(Fla. 2d DCA 2006).  With severance, there is no longer any dispute for the court
to decide because arbitration will occur.  See, e.g., Terminix, 432 F.3d at 1332
(describing Anders, 346 F.3d at 1031-32); Gessa, 4 So. 3d at 682; Rollins, Inc. v.
Lighthouse Bay Holdings, Ltd., 898 So. 2d 86, 89 (Fla. 2d DCA 2005).
In this case, there is no severability clause explicitly recognizing the parties‟
intent to sever.  The trial court did not conduct an evidentiary hearing; rather, it
simply reviewed the terms of the contract to determine that the challenged
provisions were severable.  See Gessa, 4 So. 3d at 682.  Although the Second
District characterized this as finding of fact by the trial court, it is based on a
construction of the agreement by the trial court, without any evidentiary hearing, to
find the challenged terms severable.  See id.  The majority, while coming to the
opposite conclusion that the challenged terms are not severable, also simply
reviews the contract.  Majority op. at 11-12.
Contrary to the majority‟s ruling, the issue of severability cannot be decided
in Petitioner‟s favor.  The majority mistakenly considers the $250,000 limitation
- 26 -

on noneconomic damages and the preclusion of punitive damages in the contract as
“the financial heart of the agreement.”  Majority op. at 12.  However, this ignores
and mischaracterizes the economic reality of the transaction.  The separate
admissions agreement is the financial heart of the agreement between the parties,
providing for the rights and responsibilities of the parties relating to the resident‟s
stay at the nursing home, including the room and board rate, ancillary charges, and
room and standard services by the facility.  The separate arbitration agreement is a
side agreement determining the specifics of arbitration, i.e., the scope, how and
where the arbitration will be conducted, and the limitations of a potential
arbitration award.  The limitations also include provisions that both parties waive
their rights to attorney‟s fees and costs under any statutory rights and proposals for
settlement, that net economic damages will not be limited but offset by collateral
source payments and liens satisfied from the damages awarded, and that interest on
unpaid nursing home charges will not be awarded.
Contrary to the majority‟s ruling, the limitations of noneconomic damages
and elimination of punitive damages are divisible and do not eliminate the essence
of the agreement to arbitrate the parties‟ claims.  See Stiehl, 22 So. 3d at 100
(“[W]e do not find that the remedial limitation is so interrelated and interdependent
that it cannot be severed by the arbitrator if necessary . . .                            .”).  The remainder of the
agreement, describing what will be arbitrated, how the arbitration process will
- 27 -

occur, where the arbitration will occur, and the other limitations could remain
intact without “rewriting the contract” as the majority asserts.  See id.  I agree with
the trial court and the Second District that the contract unambiguously may be
severed.12  The majority errs by holding that the contract unambiguously prohibits
severance of these challenged provisions.
Because of the severability of the challenged provisions, the matter should
be arbitrated, and the arbitration panel should decide whether the challenged
provisions may be enforced, if they ever arise.  The speculative nature of these
challenged limitations is an additional reason to enforce the arbitration provision.
Petitioners may not be able to prove entitlement to noneconomic damages
exceeding $250,000 or punitive damages so that the limitations would never be
triggered.  If that were the case, then the arbitration agreement, which otherwise
should be enforced according to the facts of the case, would be improperly
12.    To any extent that this is not clear from the terms of the contract, the
trial court should conduct an evidentiary hearing to determine the parties‟ intent.
See, e.g., Gold, Vann & White, P.A. v. Friedenstab, 831 So. 2d 692, 695-97 (Fla.
4th DCA 2002) (ruling that issues relating to whether the employment contract‟s
essential purpose would be nullified by severance must be determined by
evidentiary hearing); Harrison v. Palm Harbor MRI, Inc., 703 So. 2d 1117, 1119
(Fla. 2d DCA 1997) (remanding to trial court for evidentiary hearing of
severability of contract where there was no severance provision in the contract).   In
this case, if there were an ambiguity as to whether the parties intended to sever the
challenged provisions, it would itself be a gateway question of arbitrability and is
therefore appropriate for a court to answer in the first instance.  See PacifiCare
Health Sys., Inc. v. Book, 538 U.S. 401, 407 n.2 (2003).
- 28 -

rendered unenforceable by the speculation that such limitations might be invoked.
See PacifiCare, 538 U.S. at 407 (holding that courts should not speculate on how
an arbitrator might rule “in a manner that casts [agreements‟] enforceability into
doubt,” and in such cases the proper course is to compel arbitration); Kristian v.
Comcast Corp., 446 F.3d 25, 40 (1st Cir. 2006) (interpreting PacifiCare to state
that “[g]iven the presumption in favor of arbitration, a court should not foreclose
the operation of that presumption by deciding that there is a question of
arbitrability when there is the possibility that an arbitrator‟s decision in the first
instance would obviate the need for judicial decision making”).  This rationale is
consistent with that used by the United States Supreme Court in Buckeye, 546 U.S.
at 448-49, to address the “conundrum” that a contract ultimately found to be
unenforceable could be used to arbitrate a dispute:
It is true, as respondents assert, that the Prima Paint[13] rule
permits a court to enforce an arbitration agreement in a contract that
the arbitrator later finds to be void.  But it is equally true that
respondents‟ approach permits a court to deny effect to an arbitration
provision in a contract that the court later finds to be perfectly
enforceable.  Prima Paint resolved this conundrum—and resolved it in
favor of the separate enforceability of arbitration provisions.
In this case, there is a similar conundrum.  The limitation provisions of a
contract might be invoked if Petitioner proves sufficient damages to exceed the cap
and for punitive damages.  But to decide at the outset that the agreement is
13.  Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967).
- 29 -

unenforceable because the limitations might be reached is to deny effect to an
arbitration provision in a contract that the court may later find to be perfectly
enforceable (because the limitations were not reached).  As in Buckeye and Prima
Paint, the speculative nature of the enforceability issue should be resolved in favor
of the separate enforceability of arbitration provisions.  See Buckeye, 546 U.S. at
448-49; Prima Paint, 388 U.S. at 403-04.
Public Policy—Enforceability
Because the arbitration panel should decide whether the challenged
provisions may be enforced as a matter of Florida law, as described earlier, the
majority erred by reaching the issue and then again by erroneously deciding the
challenged limitation provisions are unenforceable as void against public policy.
The Florida Legislature, not this Court, should decide Florida‟s public policy.
It is well-settled that contractual waivers are enforceable under Florida law
for any type of rights.  See Bellaire Secs. Corp. v. Brown, 168 So. 625, 639 (Fla.
1936) (“A party may waive any right to which he is legally entitled, whether
secured by contract, conferred by statute, or guaranteed by the Constitution.”).
For instance, one may waive constitutional rights.  Article I, section 26 of
the Florida Constitution, contained within the Declaration of Rights, provides:
Claimant’s right to fair compensation.—
(a) Article I, Section 26 is created to read “Claimant‟s right to fair
compensation.”  In any medical liability claim involving a
- 30 -

contingency fee, the claimant is entitled to receive no less than 70% of
the first $250,000 in all damages received by the claimant, exclusive
of reasonable and customary costs, whether received by judgment,
settlement, or otherwise, and regardless of the number of defendants.
The claimant is entitled to 90% of all damages in excess of $250,000,
exclusive of reasonable and customary costs and regardless of the
number of defendants.  This provision is self-executing and does not
require implementing legislation.
The public policy of the State of Florida was expressed by the vote of the people of
Florida by enacting this 2004 Florida constitutional amendment to provide rights
relating to contingency attorney‟s fees.  In spite of the remedial provisions in favor
of claimants, this Court held that these Florida constitutional rights could be
waived by contract and that attorneys could recover more than permitted by this
amendment.  See In re Amendment to the Rules Regulating the Fla. Bar—Rule 4-
1.5(f)(4)(B) of the Rules of Prof‟l Conduct, 939 So. 2d 1032 (Fla. 2006) (adopting
an amendment to the Rules Regulating the Florida Bar to permit a contractual
waiver of section 26, imposing a specified legal fee structure for contingency fees).
It is difficult to understand how, as a matter of public policy, the expressly
declared rights of this constitutional provision may be waived, but the damages
provided by statute may not be limited by contract.
Unlike other statutory remedies, the Florida Legislature has not prohibited a
waiver of the remedies provided in chapter 400, Florida Statutes (2004).  The
Florida Legislature has specifically prohibited waiver of rights under chapter 443,
- 31 -

Florida Statues (2004), Florida‟s unemployment compensation law, and voided any
agreement that attempts to waive those rights:
443.041 Waiver of rights; fees; privileged communications.—
(1) WAIVER OF RIGHTS VOID.— Any agreement by an
individual to waive, release, or commute her or his rights to benefits
or any other rights under this chapter is void.  Any agreement by an
individual in the employ of any person or concern to pay all or any
portion of any employer‟s contributions . . . required under this
chapter from the employer, is void.  An employer may not directly or
indirectly make or require or accept any deduction from wages to
finance the employer‟s contributions . . . required from her or him, or
require or accept any waiver of any right under this chapter by any
individual in her or his employ.  Any employer or officer or agent of
an employer, who violates this subsection commits a misdemeanor of
the second degree, punishable as provided in s. 775.082 or s. 775.083.
§ 443.041(1), Fla. Stat. (2004).
Moreover, the Florida Legislature stated that any waiver of specified
provisions of the Motor Vehicle Retail Sales Finance Act “shall be unenforceable
and void.”   § 520.13, Fla. Stat. (2004).    And, regarding liability of persons
engaging in certain hazardous occupations, the Legislature has provided:
769.06 Contracts limiting liability invalid. —Any contract,
contrivance or device whatever, having the effect to relieve or exempt
the persons mentioned in s. 769.01 from the liability prescribed by
this chapter shall be illegal and void.
§ 769.06, Fla. Stat. (2004).  Florida‟s insurance law specifies that “[n]o contract
shall contain any waiver of rights or benefits provided to or available to subscribers
under the provisions of any law or rule applicable to health maintenance
organizations.”   § 641.31(11), Fla. Stat. (2004).  And chapter 713, Florida Statutes,
- 32 -

addressing construction liens, makes unwaivable the right to claim a lien before it
matures.   § 713.20(2), Fla. Stat. (2004) (“A right to claim a lien may not be waived
in advance. . .                                                                         .  Any waiver of a right to claim a lien that is made in advance is
unenforceable.”).
Similarly, if waiver of the remedies of chapter 400 violates public policy, it
should be the Florida Legislature‟s decision to specify that such waivers are
prohibited and void, rather than the judiciary‟s.  See art. II, § 3, Fla. Const.
(recognizing separation of powers); Knowles v. Beverly Enters.-Fla., Inc., 898 So.
2d 1, 9 (Fla. 2004) (ruling that section 400.023 is a legislatively created cause of
action to be brought by personal representatives only under certain circumstances
and concluding that the Florida Legislature had the authority to determine the
extent of the statutory right and to prescribe or limit the remedies available for a
violation of the right).  Had the legislature intended to void contractual provisions
waiving remedies under chapter 400, it could have said so.  See Tallahassee Mem‟l
Reg‟l Med. Ctr. v. Kinsey, 655 So. 2d 1191, 1198 (Fla. 1st DCA 1995) (“Had the
legislature intended that posting of a satisfactory „bond or security‟ would relieve
defendants of all further liability for future economic damages, it would have been
an easy matter for it to have said so.  In our opinion, the absence of any such
language is strong evidence that the legislature did not intend the result urged by
appellants.  To presume such an intent in these circumstances would amount to the
- 33 -

most blatant form of judicial legislation.  We decline appellants‟ invitation to don
the legislative mantle.”); see also Knowles, 898 So. 2d at 7 (noting that, although
section 400.023(1) provides remedial remedies for nursing home residents, the
Court is without power to add words to the statute); Fla. Wildlife Fed‟n v. State
Dep‟t of Envtl. Regulation, 390 So. 2d 64, 67 (Fla. 1980) (“If the legislature had
meant for the special injury rule to be preserved in the area of environmental
protection, it could easily have said so.”).
Significantly, in Unicare Health Facilities, Inc. v. Mort, 553 So. 2d 159, 161
(Fla. 1989), this Court recognized that remedies provided in chapter 400 may be
waived when it ruled that the attorney‟s fees provision of section 400.023 is
“merely a statutory right to seek fees,” and that “[c]learly, statutory rights can be
waived.”  See also Bland, 927 So. 2d at 258 (“[A] compelling argument can be
made that, absent a legislative restriction, the courts should honor a party‟s
decision to contract away statutory protections.”); § 400.151(2), Fla. Stat. (2004)
(stating that nursing home contract shall include “any other matters which the
parties deem appropriate”); cf. Am. Int‟l Grp., Inc. v. Siemens Bldg. Techs., Inc.,
881 So. 2d 7, 12 (Fla. 3d DCA 2004) (“It is well settled that the parties are free to
„contract out,‟ by an arbitration provision or otherwise, of any common law
remedy which might otherwise be available.  See 17 Am. Jur. 2d Contracts § 709
(2004).”).
- 34 -

The Court has erred by invoking public policy to void this arbitration
agreement.
III.  CONCLUSION
Because the challenged provisions of the arbitration agreement may be
severed, and the determination of whether the provisions violate public policy
should be determined by the Florida Legislature rather than this Court, I would
affirm the Second District‟s ruling in favor of arbitration.  I respectfully dissent.
CANADY, C.J., concurs.
Application for Review of the Decision of the District Court of Appeal - Direct
Conflict of Decisions
Second District - Case No. 2D07-1928
(Hillsborough County)
Susan B. Morrison, of the Law Office of Susan Morrison, Tampa, Florida, James
L. Wilkes, III, Isaac R. Ruiz-Carus, and Blair N. Mendes of Wilkes and McHugh,
P.A., Tampa, Florida
for Petitioners
Matthew J. Conigliaro, Sylvia J. Walbolt, and Annette Marie Lang of Carlton
Fields, P.A., St. Petersburg, Florida,
for Respondents
Karen L. Goldsmith and Jonathan S. Grout of Goldsmith and Grout, P.A., on
behalf of Florida Health Care Associations; Cynthia S. Tunnicliff and Ashley P.
Mayer of Pennington, Moore, Wilkinson, Bell, and Dunbar, P.A., on behalf of
- 35 -

Florida Justice Reform Institute and Florida Medical Association; and Steven
Geoffrey Sieseler, Stuart, Florida, on behalf of Pacific Legal Foundation,
As Amici Curiae
- 36 -

Download sc09-768.pdf