Merlien v. JM Family Enters., Inc., No. 4D19-2911

CourtCourt of Appeal of Florida (US)
Writing for the CourtForst, J.
Citation301 So.3d 1
Parties Diveston MERLIEN, Appellant, v. JM FAMILY ENTERPRISES, INC., Sheridan 441, LLC and Bendles Rentals, LLC, Appellees.
Docket NumberNo. 4D19-2911
Decision Date22 July 2020

301 So.3d 1

Diveston MERLIEN, Appellant,
v.
JM FAMILY ENTERPRISES, INC., Sheridan 441, LLC and Bendles Rentals, LLC, Appellees.

No. 4D19-2911

District Court of Appeal of Florida, Fourth District.

[July 22, 2020]


Neil Rose, Esq., Hollywood, and Morgan Weinstein of Weinstein Law, P.A., Fort Lauderdale, for appellant.

Kansas R. Gooden of Boyd & Jenerette, P.A., Miami, and Ian E. Waldick of Boyd & Jenerette, P.A., Jacksonville, for appellee JM Family Enterprises, Inc.

Forst, J.

Appellant Diveston Merlien ("the plaintiff") appeals from the trial court's final summary judgment entered in favor of JM Family Enterprises ("JM"). The trial court found that the plaintiff's negligence lawsuit was precluded by an exculpatory clause in his employment agreement. On appeal, the plaintiff argues that the disclaimer at issue was void for ambiguity and, even if the disclaimer was properly considered and not void for ambiguity, it was nevertheless unenforceable because it contravenes Florida public policy. We disagree and affirm.1

301 So.3d 3

Background

The plaintiff was employed by AlliedBarton, a firm that provides security services for various clients. He was assigned to work as a security guard for one of those clients, JM The plaintiff was allegedly injured due to a slip and fall on stairs at the JM facility where he was assigned to work. He subsequently filed a premises liability suit against JM, alleging that his slip and fall was proximately caused by JM's negligent maintenance of the stairs.

The primary focus of this appeal is the enforceability of a waiver which the plaintiff signed as a condition of employment that prohibits suit against any customer of AlliedBarton for injuries covered by the workers’ compensation statutes. The waiver provides:

WORKER'S COMPENSATION DISCLAIMER

Payment on Work-Related Injuries

I understand that state Workers’ Compensation statues [sic] cover work-related injuries that may be sustained by me. If I am injured on the job, I understand that I am required to notify my manager immediately. The manager will inform me of my state's Workers’ Compensation law as it pertains to seeking medical treatment. This is to assure that reasonable medical treatment for an injury will be paid for by Alliedbarton's [sic] Workers’ Compensation insurance.

As a result, and in consideration of AlliedBarton Security Services offering me employment, I hereby waive and forever release any and all rights I may have to:

- make a claim, or

- commence a lawsuit, or

- recover damages or losses

from or against any customer (and the employees of any customer) of AlliedBarton Security Services to which I may be assigned, arising from or relating to injuries which are covered under the Workers’ Compensation statues [sic].

Two years after the plaintiff filed his complaint, JM filed a motion for summary judgment, arguing that the plaintiff waived his right to bring suit by executing the above waiver at the commencement of his employment. After hearing argument from both parties, the trial court granted JM's motion for summary judgment. This timely appeal followed.

Analysis

"The standard of review of an order granting summary judgment is de novo." Fini v. Glascoe , 936 So. 2d 52, 54 (Fla. 4th DCA 2006). When "the enforceability of [a] pre-injury release is a question of law arising from undisputed facts, the standard of review is de novo." Kirton v. Fields , 997 So. 2d 349, 352 (Fla. 2008).

Brooks v. Paul , 219 So. 3d 886, 887 (Fla. 4th DCA 2017) ; see also Sanislo v. Give Kids the World , Inc. , 157 So. 3d 256, 260 (Fla. 2015) ("The enforceability of a pre-injury exculpatory clause arising from undisputed facts is reviewed de novo.").

I. Whether the disclaimer was ambiguous and unenforceable.

"Public policy disfavors exculpatory contracts because they relieve one

301 So.3d 4

party of the obligation to use due care.... Nevertheless, because of a countervailing policy that favors the enforcement of contracts, as a general proposition, unambiguous exculpatory contracts are enforceable unless they contravene public policy." Sanislo , 157 So. 3d at 260 (internal citations omitted).

Florida courts have upheld the enforceability of exculpatory provisions in contracts only when the language of the provision clearly and unambiguously communicates the scope and nature of the disclaimer. See id. at 260–61 ; Fresnedo v. Porky's Gym III, Inc. , 271 So. 3d 1185, 1186 (Fla. 3d DCA 2019) ; Brooks , 219 So. 3d at 888. "Such provisions are deemed to be unambiguous and enforceable when the language unequivocally demonstrates a clear and understandable intention for the defendant to be relieved from liability such that an ordinary and knowledgeable person will know what he or she is contracting away." Pillay v. Pub. Storage , Inc. , 284 So. 3d 566, 569 (Fla. 4th DCA 2019) (citing Sanislo , 157 So. 3d at 260-61 ).

In addressing the trial court's determination that the AlliedBarton release was clear and unambiguous, the plaintiff cites to UCF Athletics Ass'n Inc. v. Plancher , 121 So. 3d 1097 (Fla. 5th DCA 2013), quashed in part on other grounds , 175 So. 3d 724 (Fla. 2015), and argues that the waiver at issue in that case is analogous to AlliedBarton's current disclaimer. We disagree and find the case to be distinguishable.

In Plancher , the parents of a University of Central Florida football player brought a negligence action against the university after their son collapsed and died during conditioning drills during practice. Id. at 1099. In affirming the decision of the trial court, the Fifth District found the exculpatory clause contained in "the agreement to participate clause of the Medical Examination and Authorization Waiver" to be ambiguous and unenforceable. Id. at 1099, 1103.

In pertinent part, the exculpatory clause at issue in Plancher contained the following language:

I recognize the importance of following all instructions of the coaching staff, strength and conditioning staff, and/or Sports Medicine Department. Furthermore, I understand that the possibility of injury, including catastrophic injury, does exist even though proper rules and techniques are followed to the fullest....

In consideration of the University of Central Florida Athletic Association, Inc. permitting me to participate in intercollegiate athletics and to engage in all activities and travel related to my sport, I hereby voluntarily assume all risks associated with participation and agree to exonerate, save harmless and release the University of Central Florida Athletic Association, Inc., its agents, servants, trustees, and employees from any and all liability, any medical expenses not covered by the University of Central Florida Athletic Association's athletics medical insurance coverage, and all claims, causes of action or demands of any kind and nature whatsoever which may arise by or in connection with my participation in any activities related to intercollegiate athletics.

The terms hereof shall serve as release and assumption of risk for my heirs, estate, executor, administrator, assignees, and all members of my family.

Id. at 1100-01. The Fifth District explained its determination that the release language was ambiguous, and the release was thus unenforceable:

This preamble, when coupled with a clause that does not expressly state that
301 So.3d 5
[the decedent] would be waiving a negligence action, could have easily led [the decedent] to believe that UCFAA would be supervising his training and instructing him properly (non-negligently), and that he was only being asked to sign the exculpatory clause to cover injuries inherent in the sport-that could occur "even though proper rules and techniques are followed to the fullest."

Id. at 1102.

The ruling in Plancher is similar to the rulings of two other cases cited in the plaintiff's initial brief. In Brooks , we invalidated an exculpatory clause in an agreement between a surgeon and patient because the language was unclear and ambiguous. 219 So. 3d at 891...

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4 practice notes
  • Baker v. United Parcel Serv., Civ. 21-439 JFR/KK
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • February 23, 2022
    ...considered this same Allied disclaimer and found that it did not contravene public policy. See Merlien v. JM Family Enterprises, Inc., 301 So.3d 1 (Fla. App. 4th Dist. 2020) (holding that disclaimer signed by security guard, waiving claims against clients of security company arising out of ......
  • Elalouf v. Sch. Bd. of Broward Cnty., No. 4D19-3272
    • United States
    • Court of Appeal of Florida (US)
    • January 6, 2021
    ...here clearly warn that serious injuries can occur even if reasonable precautions are taken.In Merlien v. JM Family Enterprises, Inc. , 301 So. 3d 1 (Fla. 4th DCA 2020), this court found clear and unambiguous a disclaimer that specifically released all rights to make a claim and that did not......
  • High Definition Mobile MRI, Inc. v. State Farm Mut. Auto. Ins. Co., No. 4D21-192
    • United States
    • Court of Appeal of Florida (US)
    • June 2, 2021
    ...for appellate review in the absence of a timelyPage 9 and proper objection in the lower court. See Merlien v. JM Family Enters., Inc., 301 So. 3d 1, 2 n.1 (Fla. 4th DCA 2020); cf. also Cadle Co. v. G & G Assocs., 737 So. 2d 1136, 1140 (Fla. 4th DCA 1999) (noting that defects in the form of ......
  • High Definition Mobile Mri, Inc. v. State Farm Mut. Auto. Ins. Co., 4D21-192
    • United States
    • Court of Appeal of Florida (US)
    • June 2, 2021
    ...for appellate review in the absence of a timely and proper objection in the lower court. See Merlien v. JM Family Enters., Inc. , 301 So. 3d 1, 2 n.1 (Fla. 4th DCA 2020) ; cf. also Cadle Co. v. G & G Assocs. , 737 So. 2d 1136, 1140 (Fla. 4th DCA 1999) (noting that defects in the form of an ......
4 cases
  • Baker v. United Parcel Serv., Civ. 21-439 JFR/KK
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • February 23, 2022
    ...considered this same Allied disclaimer and found that it did not contravene public policy. See Merlien v. JM Family Enterprises, Inc., 301 So.3d 1 (Fla. App. 4th Dist. 2020) (holding that disclaimer signed by security guard, waiving claims against clients of security company arising out of ......
  • Elalouf v. Sch. Bd. of Broward Cnty., No. 4D19-3272
    • United States
    • Court of Appeal of Florida (US)
    • January 6, 2021
    ...here clearly warn that serious injuries can occur even if reasonable precautions are taken.In Merlien v. JM Family Enterprises, Inc. , 301 So. 3d 1 (Fla. 4th DCA 2020), this court found clear and unambiguous a disclaimer that specifically released all rights to make a claim and that did not......
  • High Definition Mobile MRI, Inc. v. State Farm Mut. Auto. Ins. Co., No. 4D21-192
    • United States
    • Court of Appeal of Florida (US)
    • June 2, 2021
    ...for appellate review in the absence of a timelyPage 9 and proper objection in the lower court. See Merlien v. JM Family Enters., Inc., 301 So. 3d 1, 2 n.1 (Fla. 4th DCA 2020); cf. also Cadle Co. v. G & G Assocs., 737 So. 2d 1136, 1140 (Fla. 4th DCA 1999) (noting that defects in the form of ......
  • High Definition Mobile Mri, Inc. v. State Farm Mut. Auto. Ins. Co., 4D21-192
    • United States
    • Court of Appeal of Florida (US)
    • June 2, 2021
    ...for appellate review in the absence of a timely and proper objection in the lower court. See Merlien v. JM Family Enters., Inc. , 301 So. 3d 1, 2 n.1 (Fla. 4th DCA 2020) ; cf. also Cadle Co. v. G & G Assocs. , 737 So. 2d 1136, 1140 (Fla. 4th DCA 1999) (noting that defects in the form of an ......

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