PALM COURT NH, L.L.C. d/b/a WILTON MANORS HEALTH & REHABILITATION CENTER v. RICKIEE DOWE, as Personal Representative of the ESTATE OF ROSA LEE GREEN, etc. ( 2022 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
PALM COURT NH, L.L.C. d/b/a WILTON MANORS HEALTH &
REHABILITATION CENTER,
Appellant,
v.
RICKIEE DOWE, as Personal Representative of the Estate of ROSA LEE
GREEN, and on behalf of the surviving children, RICHARD DOWE,
WILLIE DOWE, ROBERTA BARNETTE, IRENE KELLEY, LORETTA
MORGAN, and THOMAS LEE DOWE, SR.,
Appellee.
No. 4D20-1630
[January 5, 2022]
Appeal of a non-final order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Michael A. Robinson, Judge; L.T. Case
No. CACE20000652.
Thomas A. Valdez and Vilma Martinez of Quintairos, Prieto, Wood &
Boyer, P.A., Tampa, for appellant.
Harvey J. Sepler of Alvarez/Gonzalez/Menezes LLP, Hollywood, for
appellee.
KLINGENSMITH, J.
Palm Court NH, LLC, doing business as Wilton Manors Health &
Rehabilitation Center (“the nursing home”), appeals a non-final order
denying its motion to compel arbitration. 1 Rickiee Dowe, the personal
representative of the estate of Rosa Lee Green, opposed the motion on
various grounds but primarily argued the arbitration agreement was vague
and unenforceable because it was governed by the Federal Arbitration Act
(“FAA”) by its express terms. The personal representative asserted such a
1 Our court has jurisdiction pursuant to Florida Rule of Appellate Procedure
9.130(a)(3)(C)(iv), which authorizes appeals to the district courts from non-final
orders for the limited purpose of determining a party’s entitlement to arbitration.
provision violated public policy because it limited his right to appeal. We
disagree, and for the reasons set forth below, we reverse.
Here, the personal representative filed a wrongful death action against
the nursing home under Chapter 400, Florida Statutes (2019), the Nursing
Home Residents’ Rights Act, which alleged the staff’s failure to provide
appropriate wound care led to Ms. Green’s death. The nursing home
moved to compel arbitration based upon a Voluntary Arbitration
Agreement that the parties entered into when Ms. Green moved to the
nursing home. This Agreement stated, in pertinent part:
2. Scope of Agreement: The parties agree to resolve by
binding arbitration any legal dispute, controversy, demand, or
claim that arises in connection with or is in any way related
to the Resident’s stay at the Facility (referred to collectively
herein as “Disputes”), with the exception of claims for which
the claimant stipulates in writing that the amount sought is
equal to or less than $20,000. This agreement does not waive
or eliminate any duty imposed by law to participate in any
statutory or administrative agency grievance proceedings
prior to bringing or maintaining a claim in court.
....
7. Applicability of Federal Law: The Federal Arbitration Act
(“FAA”) governs this Agreement. This Facility’s operations
involve federal entitlement programs and/or multistate
vendors and service, and therefore the Resident’s stay involves
interstate commerce.
The trial court denied the motion to compel, agreeing with the personal
representative that the arbitration agreement was void as against public
policy. At the hearing on the motion, the judge discussed a party’s right
to a jury trial and the law’s aversion to attempts to contractually
circumvent or dismantle legislative protections for nursing home
residents. The court’s written order following the hearing supported the
denial of arbitration by relying on cases that invalidated arbitration
agreements with provisions that limited the relief afforded to residents by
remedial statutes enacted for their protection. See Powertel, Inc. v. Bexley,
743 So. 2d 570 (Fla. 1st DCA 1999); SA-PGA-Ocala, LLC v. Stokes, 935 So.
2d 1242 (Fla. 5th DCA 2006); Blankfeld v. Richmond Health Care, Inc., 902
So. 2d 296 (Fla. 4th DCA 2005); Alterra Healthcare Corp. v. Est. of Linton,
ex rel. Graham, 953 So. 2d 574 (Fla. 1st DCA 2007). The trial court’s order
did not specify how the arbitration agreement—or the application of the
2
FAA to this dispute—limited any remedial provision of the Nursing Home
Residents’ Rights Act or was otherwise contrary to public policy. This
appeal followed.
“We review a trial court’s order denying a motion to compel arbitration
de novo.” Glenn B. Wright Const. & Dev., Inc. v. Cohara, 87 So. 3d 1276,
1277 (Fla. 4th DCA 2012) (citing BGT Grp. v. Tradewinds Engine Servs.,
62 So. 3d 1192, 1194 (Fla. 4th DCA 2011)).
When ruling on a motion to compel arbitration, a trial court must make
a three-pronged inquiry: “(1) whether a valid written agreement to arbitrate
exists; (2) whether an arbitrable issue exists; and (3) whether the right to
arbitration was waived.” Seifert v. U.S. Home Corp., 750 So. 2d 633, 636
(Fla. 1999). The Florida Supreme Court has connected the first prong’s
use of the term ‘valid’ to public policy because “[n]o valid agreement exists
if the arbitration clause is unenforceable on public policy grounds.” Shotts
v. OP Winter Haven, Inc., 86 So. 3d 456, 465 (Fla. 2011) (quoting Glob.
Travel Mktg., Inc. v. Shea, 908 So. 2d 392, 398 (Fla. 2005)).
In this case, the trial court denied the motion to compel based on the
first prong of the inquiry, ruling the arbitration agreement was invalid as
contrary to public policy. However, neither waiving access to courts, see
Slusser ex rel. Slusser v. Life Care Ctrs. of Am., Inc., 977 So. 2d 662, 663
(Fla. 4th DCA 2008), nor limiting judicial review, see Fla. Holdings III, LLC
v. Duerst ex rel. Duerst, 198 So. 3d 834, 843 (Fla. 2d DCA 2016), alone
make an arbitration agreement unenforceable as against public policy.
The arbitration agreement also meets the second and third prongs
required for the court to grant the motion to compel. An arbitration
“provision which is broad in scope allows for arbitration of claims ‘arising
out of or related to’ the contract, including tort claims.” Cooper v. Rehab.
Ctr. at Hollywood Hills LLC, 305 So. 3d 3, 4 (Fla. 4th DCA 2020) (quoting
Seifert v. U.S. Home Corp., 750 So. 2d 633, 639 (Fla. 1999)); see Stacy
David, Inc. v. Consuegra, 845 So. 2d 303, 306 (Fla. 2d DCA 2003) (stating
that when a contract employs a broad form arbitration clause, such as
“any controversy or claim arising out of or relating to,” it is well-established
that the contract requires arbitration of tort issues). Under the broad
language of the arbitration agreement signed by the parties, the personal
representative’s tort claim is an arbitrable issue because it “emanates from
an inimitable duty created by the parties’ unique contractual relationship.”
Cooper, 305 So. 3d at 5 (quoting Jackson v. Shakespeare Found., Inc., 108
So. 3d 587, 593 (Fla. 2013)). Furthermore, the nursing home did not waive
arbitration under these facts. See Bland v. Green Acres Grp., L.L.C., 12 So.
3d 822, 824–25 (Fla. 4th DCA 2009) (concluding that arbitration may be
3
waived if the party actively participates in the suit, filing an answer to a
suit, or generally acting “inconsistently with the arbitration right”). With
the three prongs met, the trial court erred in denying the nursing home’s
motion to compel arbitration.
The personal representative claimed that even if the trial court granted
the motion to compel arbitration, the Florida Arbitration Code (“FAC”)
would apply instead of the FAA because the nursing home’s operation had
no connection to interstate commerce. He is incorrect. An arbitration
clause in a contract not involving interstate commerce is subject to the
FAC. See O’Keefe Architects, Inc. v. CED Constr. Partners, Ltd., 944 So. 2d
181, 184 (Fla. 2006). Whereas if a transaction involves interstate
commerce, the FAA applies. See Mintz & Fraade, P.C. v. Beta Drywall
Acquisitions, LLC, 59 So. 3d 1173, 1175 (Fla. 4th DCA 2011). The Florida
Supreme Court has stated courts must “look to whether the transaction
in fact involved interstate commerce, even if the parties did not
contemplate an interstate commerce connection.” Visiting Nurse Ass’n of
Fla. v. Jupiter Med. Ctr., Inc., 154 So. 3d 1115, 1125 (Fla. 2014) (citing
Allied-Bruce Terminix Cos., Inc. v. Dobson, 513 U.S. 265, 281 (1995)).
It is undisputed that Ms. Green’s care was paid in part by Medicare,
the federal health insurance program for people sixty-five or older. In
Visiting Nurse Ass’n of Fla., the Florida Supreme Court held that interstate
commerce was involved where, among other factors, a nursing home
resident received health care paid in part by the federal Medicare program.
See Visiting Nurse Ass’n of Fla., 154 So. 3d at 1125 (quoting Miller v. Cotter,
863 N.E.2d 537, 544 (Mass. 2007)) (“[H]ealth care is an activity that in the
aggregate would represent a general practice subject to federal control and
holding that ‘accepting payment from Medicare, a Federal program . . .
constitutes an act in interstate commerce.’”).
In sum, the parties clearly contemplated governance by the FAA
because the arbitration agreement explicitly stated the FAA applied.
Further, the use of Medicare to pay part of the resident’s on-going health
care indicated the nursing home’s operation was a part of interstate
commerce. Given this, it is clear the FAA, not the FAC, applies here.
Accordingly, we reverse and remand for the trial court to grant the nursing
home’s motion to compel arbitration.
Reversed and remanded.
GERBER and KUNTZ, JJ., concur.
* * *
4
Not final until disposition of timely filed motion for rehearing.
5