ADR CORNER
Arbitration Case Law Update
DONNA GREENSPAN SOLOMON
Hamrick v . Partsfleet , LLC , 1 F . 4th 1337 ( 11th Cir . 2021 ). Federal Arbitration Act ' s ( FAA ) carve-out exception to final judgment rule , which allows review of some district court interlocutory orders , including orders denying petitions to order arbitration under federal law , does not provide a carve-out for orders denying motions to compel arbitration based on state law .
Calderon v . Sixth Rent a Car , LLC , 5 F . 4th 1204 ( 11th Cir . 2021 ). Customer ' s class action claims against car rental agency for breach of contract and violation of two states ' consumer protection laws , based on its charge for damages to car that allegedly had not occurred , did not arise out of customer ' s contract with online travel booking company , as would support arbitration of claims under Federal Arbitration Act ' s ( FAA ) strong policy favoring arbitration ; although customer ' s contract with online booker was governed by FAA , dispute in question was not an immediate , foreseeable result of the performance of online booker ' s contractual duties .
McLaurin v . Terminix Int ' l Co ., LP , 20- 12904 , 2021 WL 4236673 ( 11th Cir . Sept . 17 , 2021 ). Under the Federal Arbitration Act ( FAA ), in addition to the losing party being allowed to oppose the winning party ' s motion to confirm the arbitration award , the losing party can also take up to three months from the arbitration award to file a separate motion to vacate , modify , or correct the award .
Laurel Point Care & Rehab . Ctr ., LLC v . Estate of Desantis by & Through Desantis , 323 So . 3d 186 ( Fla . 4th DCA 2021 ). Arbitrator , and not trial court , had authority to decide whether arbitration agreement , which specifically referenced and incorporated American Health Lawyers Association ( AHLA ) Alternative Dispute Resolution Service Rules of Procedure for Arbitration , was a separate document so as to satisfy requirement in arbitration rules ; reference and incorporation of AHLA rules in arbitration agreement was a clear and unmistakable delegation of authority to have arbitrator decide issue , and AHLA rules used mandatory language requiring arbitrator to decide issue . The trial court exceeded its authority by concluding that the arbitration agreement did not satisfy a requirement in the AHLA rules as that was an issue clearly delegated to the arbitrator under the rules .
Russell v . Hydroprocessing Associates ,
LLC , 46 Fla . L . Weekly D1352 ( Fla . 1st DCA June 10 , 2021 ). Employee executed two contemporaneous employment agreements with related companies . One agreement included an arbitration provision . The other agreement did not include an arbitration provision but included an integration clause stating that the agreement was the entire agreement between the parties and superseded all prior agreements . The trial court passed the issue of arbitrability to the arbitrator , which was error . It is the trial court ' s responsibility to determine whether a valid arbitration agreement exists especially where , as here , the arbitration clause itself is challenged . The court ' s responsibility to determine whether a valid arbitration agreement exists is not altered by conflicting arbitration provisions .
Leder v . Imburgia Constr . Services , Inc ., 46 Fla . L . Weekly D1719 ( Fla . 3d DCA July 28 , 2021 ). Homeowners and construction contractor waived their right to arbitrate change order dispute . Construction contract ' s dispute resolution procedure provided that submission of dispute to agreed-upon Initial Decision Maker ( the Miami Shores Village Building Department Official ) was condition precedent to mediation , which was condition precedent to arbitration . However , contractor failed to file claim with Initial Decision Maker after change order dispute , the homeowners filed a complaint in court rather than with Initial Decision Maker , and contractor did not move to compel arbitration in answer to homeowners ' complaint but merely moved to dismiss the complaint , which the trial court granted in error .
Marino Performance , Inc . v . Zuniga , 4D20- 1463 , 2021 WL 3641855 ( Fla . 4th DCA Aug . 18 , 2021 ). Automobile dealer waived right to arbitrate as to unnamed class members
PBCBA BAR BULLETIN 8 in class-action proceeding . Dealer , which filed motion to compel arbitration on eve of certification hearing , had done nothing to preserve its right to arbitrate in the event of class certification . Dealer ’ s responses to interrogatory and document requests were directed to class representatives and proposed class members , and dealer had attempted , unsuccessfully , to have entire action dismissed on the merits . It was only after that unsuccessful attempt , and months later , that dealer attempted to compel arbitration . The key ingredient in the waiver analysis is fair notice to the opposing party and the court at a relatively early state of litigation of a party ' s arbitration rights and its intent to exercise them .
Donna Greenspan Solomon was the first attorney 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 Chair-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 . Donna can be reached at ( 561 ) 762-9932 or Donna @ SolomonAppeals . com or by visiting www . solomonappeals . com .