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Obolensky v. Chatsworth at Wellington Green, LLC

Florida Court of Appeals, Fourth District

February 28, 2018


         Not final until disposition of timely filed motion for rehearing.

         Appeal 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.

          Forst, J.

         Appellant 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 arbitration.


          Upon 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."

         The 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.

         Sub-section 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.

         Sub-section 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 advantage.

         After 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, ...

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