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The 2d DCA in DiLorenzo v. Kevin Lam, D.P.M., 42 Fla. L. Weekly D286a (Fla. 2d DCA Feb. 1, 2017) ruled that the trial court erroneously compelled arbitration for the DiLorenzos' medical malpractice claims against Kevin Lam, D.P.M.

The arbitration agreement at issue incorporated the Medical Malpractice Act's statutory cap on damages but not the provisions requiring concession of liability.

The 2d DCA reasoned that the arbitration agreement impermissibly sought to enjoy the benefits of the arbitration provisions under the Medical Malpractice Act without adopting all of its provisions. The offending provision placing a cap on damages could not be severed to make the agreement valid based on the parties' intent. Thus, arbitration could not be compelled because the agreement was unenforceable.

 


This summary was prepared by Meghan Horton of our firm.


Meghan Horton

 

 

42 Fla. L. Weekly D286a

 

Arbitration -- Medical malpractice -- Arbitration agreement which incorporates the statutory cap on damages without also adopting the concession of liability provisions of Medical Malpractice Act is unenforceable, because it seeks to enjoy the benefits of arbitration provisions under Medical Malpractice Act without adopting all its provisions -- Provision is not severable

NICK DiLORENZO and CHERYL DiLORENZO, Appellants, v. KEVIN LAM, D.P.M. and FAMILY FOOT AND LEG CENTER, Appellees. 2nd District. Case No. 2D15-2122. Opinion filed February 1, 2017. Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Collier County; Cynthia A. Pivacek, Judge. Counsel: Scott S. Liberman, Sean F. Thompson, and Kelley B. Stewart of Krupnick Campbell Malone Buser Slama Hancock Liberman, P.A., Fort Lauderdale, for Appellants. Pamela R. Masters and Nicholas A. Shannin of Shannin Law Firm, P.A., Orlando, for Appellees.

(KELLY, Judge.) Nick and Cheryl DiLorenzo appeal from the nonfinal order compelling arbitration of their medical malpractice claims against Kevin Lam, D.P.M. We agree with the DiLorenzos that the arbitration agreement at issue is unenforceable because, as explained by the supreme court in Franks v. Bowers, 116 So. 3d 1240, 1248 (Fla. 2013), it "seeks to enjoy the benefits of the arbitration provisions under the [Medical Malpractice Act1]" without adopting all its provisions. Specifically, as did the agreement in Franks, the agreement here incorporates the statutory cap on damages without also adopting the concession of liability provision of the Act. Further, for the same reasons Franks concluded the provision at issue in that case was not severable, we conclude that the provision here is likewise not severable. See id. at 1248-49. Accordingly, we reverse the order compelling arbitration and remand this case to the trial court for further proceedings.

Reversed and remanded. (WALLACE and SALARIO, JJ., Concur.)

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1. See chapter 766, Fla. Stat. (2014).






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