DiLorenzo v. Kevin Lam, D.P.M

• Court: District Court of Appeal of Florida
• Decided: February 1, 2017
• Docket: 2D15-2122
• Status: Published

Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

NICK DiLORENZO and CHERYL ) DiLORENZO, ) ) Appellants, ) ) v. ) Case No. 2D15-2122 ) KEVIN LAM, D.P.M. and FAMILY ) FOOT AND LEG CENTER, ) ) Appellees. ) ________________________________ )

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.

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.

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

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