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Keeping Your Personal Injury Case Out of Compelled Arbitration in Premises and Vehicle Cases by Shane Newlands
Whether in the world of premises liability, construction, vehicle defect or negligent repair, there have always been untold numbers of contracts and other written agreements in the periphery of our personal injury cases. Perhaps coinciding with the rise of tort reform in Florida and nationwide, these previously unseen contracts have increasingly thrust themselves into injury cases in the form of ever-present “Arbitration Agreements.” These agreements, frequently found in inconspicuous places in standard-form contracts for the purchase or repair of a car or home (the back of the form is all-toocommon) and written in small (but as defense lawyers will quickly point out: bold and capitalized) typeface, threaten to deprive our clients of their constitutionally-protected right of access to the courts,1 relegating them to the closed forum of arbitration. Especially in cases with significant damages, defense lawyers are more and more often taking a flier on the low-risk, potentially high-reward motion to compel and hoping that a court will see it their way. And when faced with the ubiquitous defense citation that “any doubts concerning the scope of an arbitration agreement should be resolved in favor of arbitration,”2 combating these motions can seem daunting. Over the last two decades, though, the Florida Supreme Court has developed and refined an analytical framework that protects unsuspecting claimants from signing away their rights to a trial by jury. Beginning in 1999 with Seifert v. U.S. Home Corp., the Court has developed a three-part test that a party seeking arbitration must satisfy: 58 | November/December 2018 | www.FloridaJusticeAssociation.org
(1) a valid written agreement to arbitrate exists; (2) an arbitrable issue exists; and (3) the right to arbitration was not waived.3 While the waiver issue is highly case-specific and beyond the ambit of this article, the law of arbitrability and validity is relatively consistent whether the plaintiff is a home- or vehicle-buyer, renter, or owner seeking repairs. Understanding the nuances of how arbitration provisions are worded, where they are found, and how they are executed is often the difference in whether or not an action is stayed in court or headed to arbitration.
Arbitrability
Any discussion of arbitrability of personal injury claims starts from two rules: (1) “no party may be forced to submit a dispute to arbitration that the party did not intend and agree to arbitrate;”4 and (2) no matter how broad the arbitration clause appears,5 a personal injury claim will not be arbitrable unless, “at a minimum, [it] raise[s] some issue the resolution of which requires reference to or construction of some portion of the contract itself.”6 The former point is important because, like any other contractual construction problem, we must first start with the plain language of the arbitration provision — the “best evidence of the parties’ intent.”7 The latter point is particularly important because the vast majority of arbitration clauses we see outside the contexts of medical malpractice and nursing home cases have nothing to do with
