IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
MARIANNE KLEMISH, INDIVIDUALLY,
ETC., ET AL,
Appellants,
v. Case No. 5D15-2574
ALEX VILLACASTIN, M.D., ET AL.,
Appellees.
________________________________/
Opinion filed July 15, 2016
Non-Final Appeal from the Circuit Court
for Marion County,
Edward L. Scott, Judge.
Jessie L. Harrell and Bryan s. Gowdy, of
Creed & Gowdy,P.A., Jacksonville, and
Kevin J. Carden, Bounds Law Group,
Maitland, for Appellants.
Richard Benjamin Wilkes and David M.
Caldevilla, of De La Parte, Gilbert &
Bales, Tampa, for Appellee, Kindred
Hospitals East, LLC d/b/a Kindred
Hospital Ocala.
No attorney for remaining Appellees.
PALMER, J.
Frank and Marianne Klemish appeal the trial court's non-final order compelling
arbitration of their medical malpractice claims against Kindred Hospitals East, LLC
(Hospital).1 Determining that the arbitration agreement entered into by the parties is void
because it violates public policy, we reverse.
Marianne was admitted to the Hospital for therapy and post-surgical care. She
signed an arbitration agreement entitled “ALTERNATIVE DISPUTE RESOLUTION
AGREEMENT AND AMENDMENT TO ADMISSION AGREEMENT.” The agreement
provided, in relevant part:
The Parties agree as follows:
....
2. Waiver of Right to a Trial. By entering into this Agreement
the Parties agree to resolve any dispute covered by this
Agreement using mediation and arbitration, and give up their
right to have the dispute decided in a court of law before a
judge or jury.
THE PARTIES UNDERSTAND THAT THE RULES OF
PROCEDURE CONTAIN PROVISIONS FOR BOTH
MEDIATION AND BINDING ARBITRATION. IF THE
PARTIES ARE UNABLE TO REACH SETTLEMENT
INFORMALLY, OR THROUGH MEDIATION, THE DISPUTE
SHALL PROCEED TO BINDING ARBITRATION. BINDING
ARBITRATION MEANS THAT THE PARTIES ARE WAIVING
THEIR RIGHT TO A TRIAL, INCLUDING THEIR RIGHT TO
A JURY TRIAL, THEIR RIGHT TO TRIAL BY A JUDGE AND
THEIR RIGHT TO APPEAL THE DECISION OF THE
ARBITRATOR(S).
....
5. Pre-Request Procedures. Notwithstanding anything in this
Agreement to the contrary, in connection with any claim for
medical malpractice as defined in Florida Statutes Section
766.106, or any similar successor law, or any claim or
Request involving medical negligence, the Parties shall
comply with the presuit investigation and presuit notification
requirements under Chapter 766, Florida Statutes, or any
similar successor laws (the "Presuit Statutes"), prior to filing a
Request for ADR, unless the Parties agree to waive the
1 Marianne appears individually and as guardian of her minor daughter, Skyla.
2
Relying on Crespo, we reached a similar result in A.K. v. Orlando Health, Inc., 186
So. 3d 626 (Fla. 5th DCA 2016). The A.K. opinion, in its entirety, reads as follows:
A.K. and W.K., individually and on behalf of their son, N.K.,
appeal from a nonfinal order compelling contractual
arbitration. The arbitration provision in this case is
substantially similar to the one we addressed in Crespo v.
Hernandez, 151 So. 3d 495 (Fla. 5th DCA 2014), review
granted, 171 So.3d 116 (Fla. 2015). As in Crespo, we hold
that the arbitration agreement at issue here violates the public
policy pronounced by the Legislature in the Medical
Malpractice Act, chapter 766, Florida Statutes (2012), by
failing to adopt the necessary statutory provisions.
Accordingly, we reverse the order compelling arbitration and
remand to the trial court for further proceedings. We also
certify that this decision conflicts with Santiago v. Baker, 135
So. 3d 569 (Fla. 2d DCA 2014).
Id. We conclude that, based upon our holdings in Crespo and A.K., the instant arbitration
agreement is unenforceable because it incorporates only some of the provisions of the
MMA and, thus, violates public policy.
Here, in paragraph 5 of the parties' arbitration agreement, the Hospital
incorporated the MMA’s presuit requirements; therefore, under Crespo and A.K., the
Hospital was required to incorporate all of the MMA’s arbitration provisions in order for
the arbitration agreement to be valid. The Hospital failed to do so and, thus, the arbitration
agreement is invalid. See also Franks, 116 So. 3d at 1248 (“Because the Legislature
explicitly found that the MMA was necessary to lower the costs of medical care in this
State, we find that any contract that seeks to enjoy the benefits of the arbitration
provisions under the statutory scheme must necessarily adopt all of its provisions.”).
We reject the Hospital's argument that, under the instant agreement's severability
clause, any invalid provisions can be severed, and, as a result, the instant matter can
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The Klemishes argue that the trial court erred in ordering this matter to arbitration
because their arbitration agreement is void as against public policy since it incorporates
some, but not all, of the provisions of Florida's Medical Malpractice Act (MMA). We agree.
“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)).
Our Supreme Court has held that public policy prohibits the enforcement of an
arbitration provision that incorporates some, but not all, of the MMA’s arbitration
provisions. Franks v. Bowers, 116 So. 3d 1240, 1248 (Fla. 2013). In Crespo v. Hernandez,
151 So. 3d 495 (Fla. 5th DCA 2014), review granted, 171 So. 3d 116 (Fla. 2015), we
applied Franks in holding that the arbitration agreement in that case violated public policy.
In its entirety, the opinion reads:
The arbitration agreement at issue violates the public policy
pronounced by the Legislature in the Medical Malpractice Act,
chapter 766, Florida Statutes (2012), by failing to adopt the
necessary statutory provisions. Franks v. Bowers, 116 So. 3d
1240, 1248 (Fla. 2013) (“Because the Legislature explicitly
found that the MMA was necessary to lower the costs of
medical care in this State, we find that any contract that seeks
to enjoy the benefits of the arbitration provisions under the
statutory scheme must necessarily adopt all of its
provisions.”). Therefore, we reverse the order rendered by the
trial court compelling binding arbitration pursuant to the
arbitration agreement under review. We certify conflict with
the decision of the Second District Court of Appeal in Santiago
v. Baker, 135 So. 3d 569 (Fla. 2d DCA 2014). We remand this
case to the trial court for further proceedings.
Id. at 496.
4
Relying on Crespo, we reached a similar result in A.K. v. Orlando Health, Inc., 186
So. 3d 626 (Fla. 5th DCA 2016). The A.K. opinion, in its entirety, reads as follows:
A.K. and W.K., individually and on behalf of their son, N.K.,
appeal from a nonfinal order compelling contractual
arbitration. The arbitration provision in this case is
substantially similar to the one we addressed in Crespo v.
Hernandez, 151 So. 3d 495 (Fla. 5th DCA 2014), review
granted, 171 So.3d 116 (Fla. 2015). As in Crespo, we hold
that the arbitration agreement at issue here violates the public
policy pronounced by the Legislature in the Medical
Malpractice Act, chapter 766, Florida Statutes (2012), by
failing to adopt the necessary statutory provisions.
Accordingly, we reverse the order compelling arbitration and
remand to the trial court for further proceedings. We also
certify that this decision conflicts with Santiago v. Baker, 135
So. 3d 569 (Fla. 2d DCA 2014).
Id. We conclude that, based upon our holdings in Crespo and A.K., the instant arbitration
agreement is unenforceable because it incorporates only some of the provisions of the
MMA and, thus, violates public policy.
Here, in paragraph 5 of the parties' arbitration agreement, the Hospital
incorporated the MMA’s presuit requirements; therefore, under Crespo and A.K., the
Hospital was required to incorporate all of the MMA’s arbitration provisions in order for
the arbitration agreement to be valid. The Hospital failed to do so and, thus, the arbitration
agreement is invalid. See also Franks, 116 So. 3d at 1248 (“Because the Legislature
explicitly found that the MMA was necessary to lower the costs of medical care in this
State, we find that any contract that seeks to enjoy the benefits of the arbitration
provisions under the statutory scheme must necessarily adopt all of its provisions.”).
We reject the Hospital's argument that, under the instant agreement's severability
clause, any invalid provisions can be severed, and, as a result, the instant matter can
5
proceed to arbitration.2 If the invalid provisions were severed, the trial court would be
required to rewrite the parties' arbitration agreement by inserting the MMA’s arbitration
provisions. Florida courts do not authorize such action. See Shotts, 86 So. 3d at 478
(“Based on the foregoing, we conclude that the limitations of remedies provision in the
present case that calls for the imposition of the AHLA rules is not severable from the
remainder of the agreement. Although the arbitration agreement in this case contains a
severability clause, the AHLA provision goes to the very essence of the agreement. If the
provision were to be severed, the trial court would be forced to rewrite the agreement and
to add an entirely new set of procedural rules and burdens and standards, a job that the
trial court is not tasked to do.”). See also Estate of Yetta Novosett v. Arc Vill. II, LLC, 189
So. 3d 895 (Fla. 5th DCA 2016); Estate of Reinshagen ex rel. Reinshagen v. WRYP ALF,
LLC, 190 So. 3d 224 (Fla. 5th DCA 2016).
Accordingly, we reverse the trial court's arbitration order and remand for further
proceedings consistent with this opinion. As we did in Crespo and A.K., we certify conflict
with the decision of the Second District Court of Appeal in Santiago v. Baker, 135 So. 3d
569 (Fla. 2d DCA 2014).
REVERSED AND REMANDED; CONFLICT CERTIFIED.
TORPY and EVANDER, JJ., concur.
2 The severability clause provides:
If any provision of this Agreement is determined by an
arbitrator or a court of competent jurisdiction to be invalid or
unenforceable, in whole or in part, the remaining provisions,
and partially invalid or unenforceable provisions, to the extent
valid and enforceable, shall nevertheless be binding and valid
and enforceable.
6