May 5, 2022 by Jennifer Kennedy

Torts — Nursing homes — Arbitration — Enforceability of arbitration agreement — Unconscionability — Confidentiality provisions — Error to deny motion to compel arbitration based on determination that arbitration agreement was unconscionable where unconscionable provisions were severable — Record supports trial court’s finding that plaintiff met burden of proving some procedural unconscionability where resident contract was one of adhesion and agreement to arbitrate was neither set off nor conspicuous in any manner — Provisions purporting to waive any attorney’s fees; waive any right to appeal the decision of an arbitrator; and allowing defendants to bring certain claims in court while requiring residents to submit all conflict to arbitration are substantively unconscionable and should be severed from arbitration agreement — Court rejects argument that confidentiality provisions in arbitration agreements are substantively unconscionable — The court finds that, because Florida courts have acknowledged and enforced confidentiality agreements related to mediation proceedings and favor alternative dispute resolution, the confidentiality provision was not unconscionable — Remand to strike offending provisions and to enter orders compelling arbitration