NORTHPORT HEALTH SERVICES OF FLORIDA, LLC D/B/A WEST MELBOURNE HEALTH AND REHABILITATION CENTER, Appellant,
ROSIETTE LOUIS, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ELIENNE PHILISTIN, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appeal from the Circuit Court for Brevard County, Charles J.
Lissette M. Gonzalez and Scott A. Cole, of Cole, Scott &
Kissane, P.A., Miami, for Appellant.
Douglas F. Eaton, of Eaton & Wolk, PL, Miami, for
Health Services of Florida, LLC d/b/a West Melbourne Health
and Rehabilitation Center ("Northport") appeals a
non-final order denying its motion to compel
arbitration. The trial court found the parties'
arbitration agreement to be "vague, confusing and
conflicting" and that it was unenforceable for being
void as against public policy because it limited the ability
of the Appellee, Rosiette Louis, as personal representative
of the Estate of Elienne Philistin ("Estate") to
recover damages and increased her evidentiary burden of
proof. We reverse and remand to the trial court to sever the
provision in the arbitration agreement that requires the
application of Alabama law to the admissibility of evidence
at the arbitration hearing.
Philistin was admitted to the West Melbourne Health and
Rehabilitation Center on August 7, 2015, and resided there
until she died on September 25, 2015. On the date of her
admission, Philistin's daughter, Rosiette Louis, with
power of attorney on behalf of her mother, executed an
admission agreement that contained the arbitration agreement
before the court in which the parties agreed to resolve any
disputes between them by binding arbitration and specifically
waived the right to have any dispute resolved in a court of
law before a judge or jury.
filed suit against Northport alleging that Northport's
failure to comply with its statutory duties under the Florida
Nursing Home Resident's Rights Act ("Act")
was the proximate cause of Philistin's wrongful death.
Northport moved to compel arbitration. Estate responded by
asserting that the agreement to arbitrate was void and
unenforceable for two reasons. First, while acknowledging
that the agreement expressly required the arbitrator to apply
Florida's substantive law, its law of remedies,
the evidentiary burden of proof applicable in Florida in
these types of cases, Estate nevertheless contended that a
separate provision contained in paragraph 8 of the
arbitration agreement, stating that the admissibility of
evidence at the arbitration hearing shall be determined in
accordance with the Alabama Rules of Evidence, improperly
limited its ability to recover compensatory damages because
only punitive damages are recoverable in wrongful death
claims in Alabama. See Ala. Power Co. v. Turner, 575
So.2d 551 (Ala. 1991). Second, Estate argued that another
provision within the same paragraph required the application
of the Alabama Rules of Civil Procedure to all pre-hearing
discovery, which Estate asserted improperly limited it to
discovery of only those negligent acts or omissions that it
was able to identify at the outset of the lawsuit. The trial
court granted Estate's motion, finding that the
arbitration agreement violated public policy and was void
because it limits Estate's ability to recover all
available damages and also increased its evidentiary burden
of proof. The court also ruled that these two provisions in
paragraph 8 of the arbitration agreement were not severable
from the rest of the agreement "because it will create
more confusion among arbitrators regarding applicable
procedures and evidence rules."
standard of review of a trial court's order on a motion
to compel arbitration is de novo. See Laizure v. Avante
at Leesburg, Inc., 44 So.3d 1254, 1256 (Fla. 5th DCA
2010). Additionally, "a] trial court's decision
regarding whether an arbitration agreement or provision is
void as against public policy presents 'a pure question
of law, subject to de novo review.'"
Fi-Evergreen Woods, LLC v. Estate of Vrastil, 118
So.3d 859, 862 (Fla. 5th DCA 2013) (quoting Shotts v. OP
Winter Haven, Inc., 86 So.3d 456, 471 (Fla. 2011)).
public policy of the Florida Nursing Home Resident's
Rights Act is to provide rights for, and to protect, nursing
home residents. Shotts, 86 So.3d at 474. Under the
Act, a resident may recover actual and punitive damages for
the violation of these rights or for negligence, §
400.023(1)(c), Fla. Stat. (2016), and there are no caps for
pain and suffering damages. Here, while the arbitration
agreement specifically provides that the arbitrator apply
Florida substantive law, including its law of remedies, which
allow for an award of both compensatory and punitive damages,
the application of the Alabama Rules of Evidence under the
arbitration agreement may preclude Estate from presenting
evidence at the arbitration hearing as to its compensatory
damages, contrary to the remedial purpose of the Act.
reminds the court that in Hancock v. Northport Health
Services of Florida, LLC, 150 So.3d 1262 (Fla. 5th DCA
2014), we affirmed an order compelling arbitration,
determining that these identical arbitration provisions in
the arbitration agreement did not limit a resident's
available remedies under the Act and that no convincing
argument was made as to why the application of Alabama's
procedural rules would be problematic. 150 So.3d at 1263.
Estate responds that Hancock is not dispositive
because the appellant there did not raise the specific
argument being raised here as to the unenforceability of the
agreement. Northport alternatively asserts that the
arbitration agreement contains a severability clause
providing that in the event any provision of the agreement is
held to be unenforceable for any reason, the remainder of the
agreement "shall remain in full force and effect and
shall be enforceable in accordance with its terms."
"contract is severable 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." Shotts, 86
So.3d at 475 (quoting Local No. 234 of United Ass'n
of Journeymen & Apprentices of Plumbing & Pipefitting
Indus. of U.S. & Can. v. Henley & Beckwith,
Inc., 66 So.2d 818, 821-22 (Fla. 1953)). The dispositive
issue of whether a void clause or clauses invalidate the
entire arbitration agreement is whether the offending clause
goes to "the very essence of the agreement."
Rockledge NH, LLC v. Miley By & Through Miley,
219 So.3d 246, 248 (Fla. 5th DCA 2017) (quoting
Shotts, 86 So.3d at 478).
is correct that the appellant in Hancock did not
raise the specific argument being made here. Nevertheless, we
conclude that the provision of the arbitration agreement
requiring application of the Alabama Rules of Evidence at the
arbitration hearing is severable because it concerns
procedure and not the substantive law or remedies under
Florida law to which the parties specifically agreed. Thus,
this provision does not go to the "very essence" of
the arbitration agreement. Lastly, we again hold, as we did
in Hancock, that no convincing argument has been
raised as to why the application of the Alabama Rules of
Civil Procedure to the parties' conduct of pre-hearing
discovery is problematic. Accordingly, we hold that the trial
court erred in denying the motion to compel arbitration.
and REMANDED with directions that the trial court grant
Northport's motion to compel and sever from the
arbitration agreement the provision applying the Alabama
Rules of Evidence ...