DiLorenzo v. Lam

District Court of Appeal of Florida

DiLorenzo v. Lam

209 So. 3d 649, 2017 Fla. App. LEXIS 1054

CourtDistrict Court of Appeal of Florida

DecidedFebruary 1, 2017

DocketCase No. 2D15-2122

StatusPublished

This text of 209 So. 3d 649 (DiLorenzo v. Lam) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

DiLorenzo v. Lam, 209 So. 3d 649, 2017 Fla. App. LEXIS 1054 (Fla. Ct. App. 2017).

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Opinion

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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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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209 So. 3d 649, 2017 Fla. App. LEXIS 1054, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dilorenzo-v-lam-fladistctapp-2017.

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