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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

Anesthesiologist Fails to Revive Arbitration Due to Waiver

Posted on May 18, 2009
An anesthesiologist failed to raise arbitration in a lawsuit but then piggy-backs when another party seeks arbitration. Unfortunately, the doctor had already participated in arbitration. Oh, and, months before, he had taken the position in a different case that the arbitration clause did not apply to him...

What Do Loan Guarantors and Environmental Activists Have in Common? No Personal Jurisdiction in Florida!

Posted on May 14, 2009
The First and Fourth Districts have handed down strong opinions this month on Florida personal jurisdiction, indicating that non-Floridians cannot be haled into court here if there sole minimum contacts involve (1) guaranteeing bank loans made here, (2) infrequent emails/phone calls into Florida, (3) schools having alumni groups in Florida, and (4) correspondence school/distance learning students in Florida...

Golf Course Covenant Restriction Interpretation Sends Dispute to Arbitration

Posted on May 11, 2009
As a general rule, when an appellate court opinion contains few legal citations, that decision will likely not mean much to anyone other than the parties to the dispute. But what about when an opinion has NO CITATIONS AT ALL? Rare, yes. Precedent setting? We doubt it...

Second Hand Smoke / Flight Attendant Case Determines Pre-Judgment Interest When Proposal for Settlement is Valid

Posted on May 10, 2009
A class action case involving plaintiff flight attendants suing tobacco companies for second-hand smoke exposure has resulted in an appellate decision which sets out the period for pre-judgment interest when a plaintiff serves a valid Proposal for Settlement...

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Nursing Home Sues Hospital for Equitable Subrogation in "Stuart v. Hertz" Situation

Posted on May 08, 2009
Thirty years ago, Florida courts addressed the question of "who to sue?" when a person is injured in an accident and then, while being treated, suffers further injury from medical negligence. Not much changed in that area of the law until long term care litigation arose in the 1990's...

US Supreme Court: Third Parties and Non-Parties to Arbitration Agreement Can Appeal Under FAA

Posted on May 06, 2009
For SCOTUS watchers, when Scalia and Ginsburg agree on something, its probably rock solid. But then again, when CJ Roberts and Souter both dissent... We're going to give the nod to the Scalia-authored majority in Arthur Andersen LLP v. Wayne Carlisle et al...

May 2009 Florida Bar Journal Article, "Playing Games With Arbitration Awards" Discusses Phantom "Problem"

Posted on April 27, 2009
The Florida Bar Journal has been on top of arbitration issues in the last several years. The May 2009 Journal includes a detailed article following the U.S. Supreme Court's Hall Street Associates LLC v. Mattel decision from last year. As quick background, Mattel holds that parties to an arbitration agreement cannot contract the basis for federal court review of the arbitration award -- parties are limited to the grounds set forth in the FAA, section 10...

"In Accordance With Commercial Rules of AAA" Held By Florida Court to Mean Any Arbitral Forum

Posted on April 26, 2009
A Palm Beach trial court, following the language of a specific arbitration agreement and a prior Idaho Supreme Court opinion, held that the parties were not required to arbitrate in the AAA despite the fact that the agreement said, "matter shall be settled by arbitration under the United States Federal Arbitration Act in accordance with the Commercial Arbitration Rules of the American Arbitration Association...

Fourth DCA Opines on Proposal for Settlement As Simply a Settlement Agreement

Posted on April 19, 2009
An unusual set of facts and a potential appellate issue leads to a ruling in Joseph Baratta v. Bradford Electric, Inc. and Elcon Electrical Contractors Corp. which may crowd, rather than clarify, the morass of case law surrounding Proposals for Settlement...

In Dispute Over Enforcement of Arbitration, A Claim of Unconscionability Requires An Evidentiary Hearing -- And a Lawsuit Should Be Stayed, Not Dismissed, if Sent to Arbitrators

Posted on April 16, 2009
We often knock the Fourth District, in a good natured way, for their track record of ruling against nursing homes in arbitration enforcement appeals. They did it again, but with good reason, at least from what we can see from the 2-page opinion. In Adrienne Curcio as Personal Representative of the Estate of Angelina Lanzetta v...

Debt Collection Claim by Debtor for Credit Card Co's Arbitration Win Dismissed... But Not Gone?

Posted on April 13, 2009
The Second District handed down a heady opinion on appealable orders, compulsory vs. permissive counterclaims, and how courts should view litigation actions over an arbitration award. The opinion turned in favor of the credit card company/defendant/claimant in arbitration based upon a finding that the appeal was premature...

Flesh Eating Bacteria Attacks Florida Medical Negligence Arbitration Under Chapter 766, Part II

Posted on April 11, 2009
The Third District (Ramirez, Rothenberg, and Schwartz) previously handed down a December 2008 decision in Lifemark Hospitals of Florida, Inc. d/b/a Palmetto Hospital v. Mercedes Alfonso as PR of Estate of Alexis Alfonso. In late March 2009, the court issued a clarified opinion...

Third DCA Finds Arbitration Clause on Website Not Enforceable But Merely a "Separate Collateral Document"

Posted on April 08, 2009
It is fairly common for parties to exchange a signed contract which references terms and conditions on a website or other document. Often the website or other document will contain an arbitration clause and venue term. The case of General Impact Glass & Windows, Corp...

U.S. Supreme Court Embraces Arbitration in Title VII, ADEA Case

Posted on April 07, 2009
In a 5-4 opinion, the United States Supreme Court issued a decision that union members can be required to arbitrate ADA, Title VII, and ADEA discrimination cases based upon an arbitration clause negotiated in the collective bargaining agreement by the union on behalf of the employee...

www.FloridaLawCommentary.com

Posted on April 02, 2009
Come check out our new "sister" website, FloridaLawCommentary.com. Much like this one, just with a broader (and sometimes lighter) coverage of Florida legal matters.

Second District Denies Nursing Home Arbitration, Finding Power of Attorney Was Limited to Property Rights

Posted on March 31, 2009
The Second District Court of Appeal denied arbitration in a nursing home case, finding the power-of-attorney was not authorized to sign such a document for the resident since the POA document only granted authority over property interests. Once again, as we saw in Estate of McKibbin v...

Will Florida Revive a Parent's Right to Sign Liability Waivers for Children?

Posted on March 30, 2009
An annoyed Florida legislature is slowly advancing two bills which would overturn a two-month old Florida Supreme Court decision which invalidated any liability waiver signed by parents for their children to participate in commercial recreational activities...

Arbitration Bill Amended, May Affect All Florida Contracts

Posted on March 28, 2009
If you do business in Florida and use written contracts after July 1, you may need to hire a lawyer. A Florida House Bill which began as an anti-arbitration proposal passed the Civil Justice & Courts Policy Committee this week in an amended version which barely mentions arbitration -- but now mandates revisions to every contract for goods and services in Florida...

Another Joint Proposal for Settlement Voided in Florida... Concurrence Asks for Legislative Intervention

Posted on March 25, 2009
We are sensing a connection between litigation involving Hyundai and Proposals for Settlements... perhaps just a coincidence which we will explain in a moment. What is a continuing trend, however, is that Florida courts, more likely than not, strike down Proposals for Settlements when the issue goes on appeal...

Pre-Injury Waiver Bill (HB 363 / SB 886) Supported by Orlando Theme Parks

Posted on March 21, 2009
Earlier this year, the Florida Supreme Court decision in Scott Corey Kirton et al. v. Jordan Fields et al.; Dean Dyess v. Jordan Fields; and H. Spencer Kirton v. Fields confirmed a shift in Florida law where parents were unable to sign pre-injury waivers for children to participate in commercial activities...

Additional Work in Settlement Agreement Tolled Time for Construction Lien

Posted on March 18, 2009
Given the tight economy and the amount of construction after the 2004 and 2005 hurricanes, construction attorneys in Florida are quite busy with breach of contract and lien claims. The timeliness and validity of construction liens are being hotly contested...

11th Circuit Holds "Stand Alone" Arbitration Agreement Stands When Separate Contract Was Rescinded

Posted on March 16, 2009
The Eleventh Circuit slipped out an unpublished opinion on arbitration in mid-February, but some sharp readers of the blog caught it and sent the case to us. Thanks! Save yourself the PACER fees and get the opinion via the links below. In Earl Scott v...

Council for Litigation Management Conference in Phoenix, Arizona

Posted on March 12, 2009
A short plug for the Council for Litigation Management Conference being held this week in Phoenix. CLM is a non-profit organization generally tailored to corporate general counsel, outside attorney's, and insurance professionals. This is not necessarily a "defense lawyers" conference since all of the aforementioned groups often have corporate plaintiff cases...

Your Experiences / Thoughts on Martindale Hubbell's Connected Site?

Posted on March 12, 2009
I posted earlier today about the Council on Litigation Management Conference. They are apparently partnering with Martindale Hubbell, which has put its "Connected" professional networking site into public beta. Connected can be found here. Obviously, Connected is intended to be the lawyer's version of LinkedIn...

Florida House Bill HB1135 (SB 2192) Proposes to Overhaul Florida Arbitration Code, Chapter 682

Posted on March 10, 2009
The State of Florida is making waves in the world of arbitration. In Washington D.C., Senator Mel Martinez re-introduced the Nursing Home Arbitration Fairness Act, which failed to get anywhere last session. Meanwhile, in Tallahassee, lawmakers proposed two paired bills (HB 1135 / SB 2192) which would revise the existing Florida Arbitration Code, Chapter 682, Florida Statutes...

Insurance Company Pays Insured's Fees for Disputing Location of Arbitration

Posted on March 09, 2009
A matter which began as an uninsured motorist arbitration claim turned into a lawsuit over attorney's fees because an insurance company claimed that arbitration should occur in New Hampshire, not Palm Beach, based upon where the insured "lives." The Fourth District (Polen, Warner, Hazouri) provided nominal facts in Pawtucket Insurance Company, Sandra Lucate, Jean Camille aka Jean L...

Discover Wins Battle, Loses War in FAA Section 4 Interpretation Battle Before U.S. Supreme Court

Posted on March 09, 2009
While the U.S. Supreme Court begins its session on the First Monday in October, it was not until the second Monday in March that we received their first arbitration decision. Arbitration-watchers get anxious when that occurs, as we often expect that Supreme Court will hand down a some broad, significant ruling...

Contractor-Hospital Professional Services Agreement (PSA) Does Not Bind Anesthesiologist as a "Party"

Posted on March 04, 2009

Palm Beach Bar Association CLE: Tips Once You are in Arbitration

Posted on February 22, 2009
We recently attended a continuing legal/mediator education (CLE/CME) course hosted by the Palm Beach Bar Association entitled, "Mediation and Arbitration in 2009: Finding the Hidden Gems." This course provided insights from some of the most reputable and experienced arbitrators and mediators in Palm Beach and Broward counties -- and it was a packed house...

First DCA Clarifies DPOA Power-of-Attorney Wording Necessary to Compel Arbitration

Posted on February 18, 2009
What wording is needed in a durable power of attorney (POA) document to authorize a POA to sign an arbitration clause? This has become a key question in the nursing home and ALF admission agreement cases -- indeed, nursing home lawyers are making more law on this issue than their less rabid probate and trust and estates brethren...

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