Arbitration & Mediation

4th DCA Agains Re-Visits Broad Arbitration Language and the Arbitrability of Statutory Claims

By Christopher B. Hopkins, Esq.

More and more, Florida courts are consistently ruling on the breadth of arbitration clauses based upon their wording. We've reported on this quite a bit, most recently another 4th DCA case, Florida Environmental Services, Inc. v. Michael and Cher Rentoumis, where the court discussed "all disputes," "arising under, and "arising out of and relating to." Indeed, before that, we covered a Third DCA case where "arising out of and/or relating to" was not all that broad (meanwhile, see a Fifth DCA case on that topic). As we've mentioned before, something like "all disputes among the parties" might be the best avenue.

So, that brings us to HospiceCare of SouthEast Florida, Inc. v. Dr. Malcolm Major, which the Fourth DCA handed down just before Thanksgiving. Dr. Major, an internal medicine doctor from Plantation (who also is a lawyer), apparently was the medical director for the hospice. A dispute involving a breach of contract and a Whistleblower's statutory claim arose; the defendant hospice invoked the arbitration clause which stated, "any controversy or claim arising out of or related to this Agreement, or any breach thereof, shall be settled by arbitration."

The trial judge held the breach of contract claim was arbitrable but not the statutory claim claiming that the arbitration clause was not broad enough and should have, instead, referenced "the employment relationship" rather than "this agreement."

Fourth DCA reversed, and rightly so. As the Court has said before, "arising under" is narrow arbitration language while the subject language of "arising out of or relating to" is broad. The First and Third DCAs have previously held this particularly statute to be arbitrable and, indeed, most statutory claims generally are. So both the contract and statutory claims are going to arbitration.

Interestingly, we note something NOT stated in the opinion. Perhaps it is in the briefs. This precise arbitration language was upheld by the Fourth DCA in the Fenelus v. Consolidated Resources decision. Likewise, although not set out, this language also was the subject of enforcement of arbitration in the Third DCA's Etting v. Regents Park. Twice that language has been broad enough to encompass nursing home statutory claims (which have a long Florida history of being hotly contested).

We also note something else not in the opinion. This clause is similar to the one suggested (at least at one time) by the Florida Health Care Association. We've always disliked that last phrase, "settled by arbitration," since arbitrations are not settlements. That language is not fatal, as we can see from prior enforcements, but should be cleaned up to be more accurately phrased.

Full post as published by Florida Arbitration Law on December 18, 2007 (boomark / email).