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
MARIE A. GAETA, INDIVIDUALLY AND
AS PERSONAL REPRESENTATIVE OF
THE ESTATE OF ANTHONY J. GAETA,
Appellant,
v. Case No. 5D17-2212
SEASIDE MANOR, LLC AND SABER
HEALTHCARE HOLDINGS, LLC,
Appellees.
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Opinion filed March 16, 2018
Non-Final Appeal from the
Circuit Court for Volusia
County,
Christopher A. France, Judge.
Herbert T. Sussman, of Boyer, Tanzler &
Sussman, P.A., Jacksonville, for Appellant.
Scott A. Cole, of Cole, Scott & Kissane,
P.A., Miami, for Appellees.
PER CURIAM.
Appellant, Marie A. Gaeta, individually and as personal representative of the
Estate of Anthony J. Gaeta, appeals the trial court’s non-final order compelling arbitration
of her tort claims against Appellees. Appellant’s husband was admitted to Appellees’
assisted living facility, at which time Appellant signed, on behalf of her husband, an
agreement to arbitrate any disputes between the parties (the “Agreement”). Appellant
argues that numerous provisions of the Agreement, including a limitation of liability
provision, are unenforceable because they violate Florida’s public policy, and that those
provisions cannot be severed, citing Gessa v. Manor Care of Florida, Inc., 86 So. 3d 484
(Fla. 2011), Shotts v. OP Winter Haven, Inc., 86 So. 3d 456 (Fla. 2011), and Estate of
Reinshagen ex rel. Reinshagen v. WRYP ALF, LLC, 190 So. 3d 224 (Fla. 5th DCA 2016).
We agree.1
In light of this binding case law, Appellees make no attempt to argue that any of
the challenged provisions are consistent with public policy or even that they are
severable. Rather, Appellees’ primary argument is that the arbitrator, not the court, must
make those determinations because the Agreement contains a delegation provision.
However, after a thorough review of the record, we do not find a delegation provision in
the Agreement. Thus, we agree with Appellant that Gessa, Shotts, and Reinshagen
compel a conclusion here that the limitation of liability provision in the Agreement is both
unenforceable and not severable.
REVERSED and REMANDED.
PALMER, WALLIS and EISNAUGLE, JJ., concur.
1
Appellant also challenges the validity of other provisions of the Agreement which
may be against public policy, but we need not reach those issues in light of the controlling
precedent of Gessa, Shotts, and Reinshagen.
2