PBCBA BAR BULLETINS pbcba_bulletin_may 2018 | Page 7

ADR C o r n e r Arbitration Case Law Update DONNA GREENSPAN SOLOMON The following are recent cases of interest Newman for Founding Partners Stable regarding arbitration issues: Value Fund, LP v. Ernst & Young, LLP, 231 So. 3d 464 (Fla. 4th DCA 2017). Receiver bound Managed Care Ins. Consultants, Inc. v. by delegation clause requiring arbitrability United Healthcare I ns. Co., 228 So. 3d 588, claims to be decided by arbitrator. 589–90 (Fla. 4th DCA 2017). Court did not err in denying motion to vacate award where arbitrator’s husband’s medical Inspired Capital, LLC v. Conde Nast, 225 So. practice had business connection with 3d 980 (Fla. 3d DCA 2017). Claim “relates to” a party. Arbitrator was not obligated to contract for purposes of arbitration clause disbelieve husband and investigate further; where resolution of disputed issue requires she did not have actual knowledge of the either reference to, or construction of, a relationship or potential conflict; nor was portion of the contract. there any actual bias shown. Boardwalk Properties Mgmt., INC. v. Emerald Clinton, LLC, 42 Fla. L. Weekly D2221 (Fla. 4th DCA Oct. 18, 2017). Arbitrator exceeded authority under arbitration provision by determining ownership interests not pertinent to resolution of issue submitted to arbitration. Lucky Star Horses, Inc. v. Diamond State Ins. Co., 233 So. 3d 1159 (Fla. 3d DCA 2017). Insurer did not waive right to arbitrate the value of stallion, despite the passage of time, filing of numerous pleadings, and taking of depositions, where insurer timely moved to compel arbitration after party to arbitration clause was brought into the case. Chaikin v. Parker Waichman LLP, 42 Fla. L. Weekly D2165 (Fla. 2d DCA Oct. 11, 2017). Employer waived right to compel arbitration of counterclaims filed by former employee where employer had sued on its arbitrable claims in court. Saunders v. St. Cloud 192 Pet Doc Hosp., LLC, 224 So. 3d 336 (Fla. 5th DCA 2017). Employee’s claims not related directly to employment contract were not subject to provision to arbitrate all claims “arising out of or related to” the contract. Mere fact that employment-related claim would not have arisen but for existence of the contract does not transform tort claim into one “arising out of or relating to” the agreement. Lowe v. Nissan of Brandon, Inc., 43 Fla. L. Weekly D103 (Fla. 2d DCA Jan. 5, 2018). Arbitration may be compelled even where contract does not contain arbitration provision where contract is incorporated into another contract with arbitration provision. Lake City Fire & Rescue Ass’n, Local 2288 v. City of Lake City, 1D17-2965, 2018 WL 1189854, at *2 (Fla. 1st DCA Mar. 8, 2018). Arbitrator exceeded his power by reducing discipline imposed on firefighter where arbitration provision clearly and unambiguously Pierre by & through Pierre v. Waste Pro limited arbitrator’s power to determine USA, Inc., 2D17-4395, 2017 WL 6761664, at *1 only whether firefighter “engaged in the (Fla. 2d DCA Dec. 1, 2017). Orders denying misconduct alleged.” confirmation of arbitration awards are not appealable under Florida Rule of Appellate Palisades Owners’ Ass’n, Inc. v. Browning, Procedure 9.130. 1D17-2129, 2018 WL 1341650, at *1 (Fla. 1st DCA Mar. 15, 2018). Claims of breach of fiduciary duty by Owners’ Association Reunion W. Dev. Partners, LLLP v. Guimaraes, were specifically excluded from class of 221 So. 3d 1278, 1280 (Fla. 5th DCA 2017). disagreements statutorily required to be While arbitrability is generally an issue for submitted to arbitration. trial courts to decide, courts must delegate the authority to the arbitrator if the parties’ contract so provides. Florida Capital Group, Inc. v. Bishop, 3D16- 1775, 2018 WL 1074257, at *1 (Fla. 3d DCA Feb. 28, 2018). Where trial court does not modify Obolensky v. Chatsworth at Wellington or correct arbitration award or vacate award Green, LLC, 4D16-3143, 2018 WL 1110892, at pursuant to statute, it is required to “confirm *4 (Fla. 4th DCA Feb. 28, 2018). Severance the award as made.” of illegal provisions from arbitration agreement does not impermissibly rewrite For additional ADR tips and resources, go to http://www. palmbeachbar.org/adr/ agreement that contains severability clauses and where removed provision is neither the “financial” heart nor “true essence” of agreement. Donna Greenspan Solomon is one of three attorneys Northport Health Services of Florida, LLC v. Louis, 5D17-335, 2018 WL 1122117, at *2 (Fla. 5th DCA Mar. 2, 2018). Provision of arbitration agreement requiring application of Alabama Rules of Evidence at arbitration hearing did not go to the “very essence” of agreement and thus was severable because it concerned procedure and not substantive law or remedies under Florida law, to which the parties had specifically agreed. PBCBA BAR BULLETIN 7 certified by The Florida Bar as both Business Litigator and Appellate Specialist. Donna is a Member of the AAA’s Roster of Arbitrators (Commercial Panel). She is a FINRA-Approved and Florida Supreme Court Qualified Arbitrator. She is also a Certified Circuit, Appellate, and Family Mediator. Donna is a Member of the Florida Supreme Court Committee on Standard Jury Instructions—Contract and Business Cases, and is the current Chair of the Business Litigation Certification Committee. Donna can be reached at [phone] or [email protected] or by visiting www. solomonappeals.com