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Arbitration & Mediation

Florida Arbitration Law

Discusses trends and developments in the enforcement of arbitration and exculpatory clauses. Focuses on Florida law but covers important decisions and current events in other states.
By Christopher B. Hopkins, Esq.

Post Frequency: 1.7/day

Last Entry: March 31, 2011 at 15:49:53

Mold in Florida Home Construction Case Sent to Arbitration

Posted on January 29, 2010
A dispute over whether a home construction case should be sent to arbitration or litigation turned on the wording of the arbitration clause. Home buyers and builders may want to check the wording of their contract, since this arbitrable matter was distinguished from two DiVosta Homes cases which failed due to "non-specifically worded" clauses...

Failure to Designate Rules Will Not Void Arbitration Agreement

Posted on January 27, 2010
The parties in Premier Real Estate Holdings LLC v. Park I. Butch, Atlantic Melbourne, Inc., and Melbourne Properties, LLC (Polen, May, and Gerber) had a fairly standard contract with an arbitration clause -- but they failed to fill in the blank about which rules apply to arbitration and who administers it...

Split Panel in Second DCA Finds Including Insurer on General Release Was a Counter Offer

Posted on January 17, 2010
In late 2009, the Fourth District held in Grant v. Lyons that there were certain "usual terms" to a general release and the inclusion -- or suggestion of inclusion -- may not be a counter offer. The First District faced a similar issue in Roger J. Gonzalez v...

Plaintiff Bar Focuses on Anti-Arbitration Legislation in 2010

Posted on January 15, 2010
The American Association for Justice, the lobbying organization for plaintiff lawyers, voiced its agenda for 2010 earlier this week, indicating that eradicating arbitration clauses, specifically those in nursing home agreements, will be a primary focus for this year...

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More on Credit Cards and the Trend of Disappearing Arbitration Clauses

Posted on January 12, 2010
We've covered prior stories about major credit card companies/banks dropping arbitration clauses from their customer agreements (see our post last month re: JP Morgan and Bank of America). A website, Legal X, recently ran a story suggesting that the banks' voluntary decisions may actually be due to "pressure of a pending class action lawsuit filed by Philadelphia-based Berger & Montague...

5th DCA Nails Close the Coffin on McKibbin -- With An Explanation

Posted on January 11, 2010
Since 2007-2008, there has been a rash of cases interpreting what is, and is not, a broad durable power of attorney. This issue had laid dormant for eons until nursing home counsel nosily rattled the POA cage in the ongoing dispute over enforcement of arbitration clauses in long term settings...

11th Circuit Consider's Sprint Nextel's Arbitration and Class Action Waiver Clauses

Posted on January 07, 2010
The year 2010 should provide some significant developments regarding arbitration enforcement. The Eleventh Circuit began the year with a bang, sending a class action waiver case to the Florida Supreme Court since the federal court determined that the miasma among the intermediate appellate state courts prevented a clear decision...

Florida Supreme Court Orders Arbitration for Foreclosures

Posted on December 29, 2009
Mediators, judges, and homeowners facing foreclosure are collectively cheering yesterday's order from the Florida Supreme Court ordering mediation for all foreclosure cases. Already required for all litigation cases, the new ADR requirement for foreclosure matters is aimed at stemming the nearly a half million foreclosures which were filed last year...

Florida Supreme Court Orders Mediation for Foreclosures

H.R. 3326 Pass Congress, Signed by President Obama: First Sign of Federal Anti-Arbitration Legislation?

Posted on December 27, 2009
We previously reported on a federal bill which prevented overseas military contractors from inserting arbitration clauses which would require employees to arbitrate Title VII and other specified claims. While a narrow issue, the bill was raised after heavy scrutiny arose from several cases which drew significant (negative) attention...

Second DCA Confirms Motion to Compel Arbitration Can't Be an 8:45 a.m. Hearing if Disputed Facts

Posted on December 25, 2009
Of late, the Second District has brought out its heavy arbitration paddle and taken it to attorneys and trial judges. The paddle came out again in Johnson Pope Bokor Ruppel & Burns, LLP v. John Forier; Paradise Lakes Resort, LLC; Cabana at Paradise, LLC et al...

Florida Trial Court Holds Treating Doctor and ARNP Not Intended to be Included in Resident-Nursing Home Arbitration Agreement

Posted on December 23, 2009
Several years ago, some plaintiff lawyers developed an argument to avoid arbitration where they would agree that the defendant corporation was subject to arbitration but the plaintiff would then sue individual employees of the defendant corporation and claim those individuals were not signatories...

Preclusion or Permission: U.S. Supreme Court Hears Case Re Class Actions When Arbitration is Silent

Posted on December 18, 2009
We've discussed recently the cases of Life Receiveables v. Goshawk and Jaylene v. Steuer, both of which we interpret to address questions as to whether (or what) the arbitrators can decide relative to arbitrability and/or their own jurisdiction. The U...

NY Court Questions Whether Arbitrability is Best for Court or Arbitrator

Posted on December 15, 2009
Earlier this month in Jaylene v. Steuer, Judge Northcutt examined the Second District's method of leaving questions of arbitrability to the arbitration panel. Since we believe this is an issue which will be explored and expanded, we turn our gaze north to see how other states have addressed such issues...

Fourth DCA: Procedure Chosen By Parties Fails But Arbitration Still Ordered

Posted on December 14, 2009
Two Florida courts have previously held that if the arbitration forum is "unavailable" for some reason, the parties are directed to either work out an alternative or seek relief from the court under Florida Statute 682.04. Specifically, we saw this when AAA declined to arbitrate health care cases and the parties' agreement referred the case to that forum...

Deferring Public Policy Challenges to the Arbitrator: Is the Second District Right in Its Conflict With Three Other Courts?

Posted on December 09, 2009
Often when the majority portion of an appellate decision is short and a separate concurring/dissenting opinion is long, there frequently is some great legal pursuit afoot. The case of Jaylene, Inc, Candansk, Dansk Management, Inc.; Senior Management Services a/k/a Carrington Place Care Center v...

Second DCA Confirms A "Widely Used" Durable Power of Attorney Form Includes Selecting Arbitration

Posted on December 06, 2009
The Second District has been busy recently with a pair of nursing home arbitration decisions which reflect that the court (1) acknowledges it is in conflict with other districts on whether courts or arbitrators should consider public policy challenges and (2) continues to clean up the mess over the scope of durable powers of attorney caused by an aberrant, earlier decision...

Marital Settlement Agreement and Shareholder Agreement: One Has Arbitration Clause, the Other Does Not...

Posted on November 25, 2009
What happens when parties simultaneously sign two agreements regarding different subject matters where one contract has an arbitration clause and the other does not? We've seen this issue come up twice involving business transactions (in both cases, shareholder agreements) and a divorce...

Florida Trend Magazine Legal Elite 2010

Posted on November 24, 2009
Please take a moment and vote for: Christopher Hopkins (Butzel Long, Palm Beach) to be a member of Florida Trend magazine’s “Legal Elite.” The link is here. I appreciate the support from our blog readers. I'm also happy to return the favor with a vote for you, just email me...

JP Morgan Chase and Bank of America Drop Arbitration Clause from Credit Card Agreements

Posted on November 24, 2009
Perhaps the news comes in anticipation of some anticipated, forthcoming anti-arbitration federal legislation. Or, more likely, it stems from National Arbitration Forum's closure of its consumer arbitration program. Two major credit card companies, JP Morgan Chase and (three months ago) Bank of America, have dropped arbitration provisions from their credit card agreements...

Arbitration Fairness Act of 2009 (H.R. 1020 / S 931) May Get a Boost from Jones v. Halliburton and H.R. 3326

Posted on November 22, 2009
For several years there has been some form of proposed federal legislation limiting arbitration and it appears likely that "something" will be passed in the future which retreats from the current national stance favoring arbitration. Strong forces exist on both sides as plaintiff lawyers and consumer groups claim that arbitration is a rigged star chamber while corporations claim that they are required to reduce litigation costs...

Fourth DCA Holds Proposal for Settlement Can't Apply to Suit for Damages and Injunctive Relief

Posted on November 18, 2009
Florida lawyers find themselves facing yet another appellate decision invalidating a Proposal for Settlement. Yes, it's been about a month since a Proposal was shot down like this case. Or this one. In our instant case, which admittedly is a new twist on a tired issue, the Fourth District held that Proposals for Settlement cannot be used to resolve cases involving both claims for damages and injunctive relief...

Another Florida Court Agrees That AAA Declining Case Does Not Void Arbitration Agreement

Posted on November 08, 2009
Two of Florida intermediate appellate courts have now ruled that pre-dispute arbitration clauses which refers health care disputes to the American Arbitration Association (AAA) are nonetheless valid -- even though the AAA will decline the case -- because referral to the AAA is not typically an integral term...

Florida Supreme Court Grants Review of Nursing Home Arbitration Case

Posted on November 06, 2009
Apparently arbitration-watchers will want to be current on their nursing home case law since the Florida Supreme Court has granted review of Estate of Gessa v. Manor Care. Back in February, we wrote a long post attempting to sew together the long history of a particular nursing home arbitration agreement and the disparate treatment it has received in various Florida intermediate appellate courts...

Wife Verbally OK's Husband to Sign Papers Is Agency to Sign Arbitration Clause

Posted on November 02, 2009
In our last post, we discussed the Nebraska Supreme Court decision in Koricic / Baker v. Beverly Hallmark to find that a family member "agent" could be authorized to signed the "principal" into a nursing home but the court would later parse through the clauses to decide which terms might not be included...

Nebraska Supreme Court Finds Reasonable People Do Not Expect Arbitration Clauses in Nursing Home Contracts

Posted on October 29, 2009
We travel out to Nebraska for a state supreme court decision in a nursing home arbitration case which, like most cases of this type, seems to present (yet another) new twist to an area which should have been fairly well scoured by now. For years, nursing homes and other health care facilities have been making arbitration "optional" so that the admission agreement is not considered an adhesion contract...

Client Must Sign Mediation Settlement Agreement (4th DCA Overlooks On Point 3rd DCA Opinion)

Posted on October 26, 2009
For a mediation settlement agreement to be enforced by a court, Florida Rule of Civil Procedure 1.730(b) requires it to be "reduced to writing and signed by the parties and counsel, if any." Few court documents require attorney and part signature -- remember this one as the exception...

Arbitration Clause Does Not Need to "Leap Off The Page" Per Florida's Third DCA

Posted on October 19, 2009
An "simple, self-contained" arbitration clause in a four page document does not need to "leap off the page," says a Panel from the Third District in National Financial Services, LLC, Bank of America Corporation, Bank of America Investment Services, Inc...

Multiple Contracts Between Parties, One Has Arbitration Clause...

Posted on October 14, 2009
The First District considered a case where, between 1987-1993, the parties entered into several contracts with broad arbitration clauses. Eleven years later, in 2004, they enter into another contract which "supplements but does not replace" the prior contracts...

Florida Assisted Living Resident Cannot Avoid Arbitration Due to Not Reading or Understanding

Posted on October 12, 2009
In what appears to be a surprisingly weak argument, a plaintiff assisted living facility resident was able to convince a Florida trial judge that she was not bound by arbitration -- despite the Resident and the power of attorney signing the arbitration agreement...

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