final until disposition of timely filed motion for rehearing.
of a non-final order from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Thomas H. Barkdull, III,
Judge; L.T. Case No. 502015CA011204AB.
Richard D. Schuler of Schuler, Halvorson, Weisser, Zoeller
& Overbeck, P.A., West Palm Beach, Esther A. Zaretsky,
West Palm Beach, and Nichole J. Segal of Burlington &
Rockenbach, P.A., West Palm Beach, for appellant.
Rolando A. Diaz and Adilia C. Hedges of Diaz Law Group, Coral
Gables, and Dinah Stein of Hicks, Porter, Ebenfeld &
Stein, P.A., Miami, for appellee.
Anne Obolensky, a nursing home resident who is suing the
appellee nursing home for negligence, appeals a non-final
order compelling arbitration. Relying upon two Florida
Supreme Court opinions that were issued on the same day,
Gessa v. Manor Care of Fla., Inc., 86 So.3d 484
(Fla. 2011) and Shotts v. OP Winter Haven, Inc., 86
So.3d 456 (Fla. 2011), Obolensky argues the arbitration
agreement in her contract with the nursing home cannot be
saved by the severance of certain invalid provisions that are
also part of the nursing home contract. In so doing, she
gives too broad a reading to those supreme court opinions.
Accordingly, as set forth below, we conclude that the trial
court did not err in its non-final order compelling
admission to the nursing home, Obolensky signed
"Admission and Alternative Dispute Resolution
Agreements." The "Admission Agreement" dealt
with issues such as "Consent to Treatment, "
"Financial Agreements, " "Confidentiality of
Your Medical Information, " and "Center Rules and
Grievance Procedure." It also included an
"Arbitration & Limitation of Liability Agreement,
" which contains a severability clause stating that
"Should any of sub-section A, B, or C provided below, or
any part thereof, be deemed invalid, the validity of the
remaining sub-sections, or parts thereof, will not be
affected." The three sub-sections are as follows: (A)
"Arbitration Provision"; (B) "Limitation of
Liability Provision"; and (C) "Benefits of
Arbitration and Limitation of Liability Provisions."
Arbitration Provision includes a limitation on discovery
(providing that only experts may be deposed), a waiver of the
right to appeal the arbitrator's decision, and a waiver
of any right to recover attorney's fees and costs.
Sub-section A also expressly incorporates sub-section B, the
Limitation of Liability Provision.
B provides that the purpose of the provision is to limit each
party's liability in relation to the agreement. There is
no cap on economic damages, but non-economic damages are
capped at $250, 000, and punitive damages are not allowed.
C explains the purpose or benefits of sub-sections A and B
and states in part:
The parties' decision to select arbitration is supported
by the potential cost-effectiveness and time-savings offered
by selecting arbitration, which may avoid the expense and
delay of judicial resolution in the court system. The
parties' decision to select arbitration and to agree to a
limitation of liability also are supported by the potential
benefit of preserving the availability, viability and
insurability of a long term care company for the elderly and
disable[d] in Florida, by limiting such long term care
company's exposure to liability. With this Agreement, the
Community is better able to offer its services and
accommodations at a rate that is more affordable to you. In
terms of the time-savings offered by selecting arbitration,
selecting a quick method of resolution is potentially to your
Obolensky filed a negligence claim against the nursing home,
the latter moved to compel arbitration. Citing
Gessa, Obolensky opposed the motion. She argued that
the arbitration agreement is unenforceable, because two of
the limitation of liability provisions in sub-section B
violate public policy and are not severable, as they go to
the essence of the parties' agreement. The trial court
found Gessa distinguishable because there was no
severability clause in that case. The court granted the
motion to compel arbitration with the understanding that the
arbitrator would not be deciding the viability of the
limitations on liability, ...