Arbitration & Mediation

Will the Florida Supreme Court Take Up A Conflict Over Waiver of Arbitration?

By Christopher B. Hopkins, Esq.

We certainly hope so. Previously, we reported on the case of Estate of Orlanis v. Oakwood Terrace and Regents Park where a Third DCA panel found that there was waiver of the right to arbitration due to the fact that the Defendants sent written discovery before moving to compel arbitration. That Opinion was interesting since it watered-down the holding of a Second DCA case and relied heavily on Third DCA precedent which, upon further research, was not all that strong. In fact, the panel completely overlooked a contrary recent Third DCA opinion, from a different panel, in Carnival Cruise Lines v. Est. of Stephen Booth. At least that's what the Defendant's/Appellee's Motion for Rehearing claimed. But the Third DCA entered an order denying rehearing.

The Florida Supreme Court has previously stepped in, with some frequency, to quell similar disputes among the intermediate appellate courts in the area of arbitration from time to time. Given the frequency of these contests, there might even be a shade of an argument that jurisdiction should be conferred on public policy alone. But that's just us. We'll see what the High Court determines here.

The Defendant's/Appellee's/Petitioner's Brief on Jurisdiction to the Florida Supreme Court was filed and focuses on the fact that the Third DCA's Opinion stands in stark contrast --- "direct and express conflict," if you like the technical appellate wording --- to 2nd DCA's decision in Merrill Lynch v. Adams.

What exactly is the conflict? Well, the Third DCA claims that written discovery was inconsistent with the right to arbitration and found that the Second DCA's Adams case simply involved that court "questioning" whether discovery was enough to waive arbitration. To the contrary, the Adams case spent greater attention on the issue and found that there was no precedent to deny arbitration simply for undertaking written discovery and "it is questionable whether discovery, including depositions, even constitutes record activity." The Second DCA went further to point out that the same methods are typically available in arbitration.

Regardless of which side you favor, it is apparent that the two courts are taking opposite views on this issue. Compound that with the fact that the Florida standard for waiver (act inconsistently with right to arbitration) is different than the federal standard (inconsistent act + proof of prejudice). Things get pretty complicated.

The Respondents will shortly file their Reply and we will report whether the High Court takes jurisdiction.

Full disclosure: Christopher Hopkins and Allison Bernstein of this site represent two of the five Petitioners.

Full post as published by Florida Arbitration Law on February 08, 2008 (boomark / email).