Orkin Exterminating Co., Inc. v. Petsch

872 So. 2d 259, 2004 WL 221065
CourtDistrict Court of Appeal of Florida
DecidedFebruary 6, 2004
Docket2D02-5494
StatusPublished
Cited by53 cases

This text of 872 So. 2d 259 (Orkin Exterminating Co., Inc. v. Petsch) 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
Orkin Exterminating Co., Inc. v. Petsch, 872 So. 2d 259, 2004 WL 221065 (Fla. Ct. App. 2004).

Opinion

872 So.2d 259 (2004)

ORKIN EXTERMINATING COMPANY, INC., Rollins, Inc., David Bernstein, individually, and Rick Prothero, individually, Appellants,
v.
Francis D. PETSCH, individually and on behalf of all others similarly situated, Appellee.

No. 2D02-5494.

District Court of Appeal of Florida, Second District.

February 6, 2004.
Rehearing Denied April 22, 2004.

*261 Michael W. Davis, William J. Nissen, and Theodore R. Scarborough of Sidley Austin Brown & Wood, Chicago, IL, and Douglas B. Brown of Rumberger, Kirk & Caldwell, Orlando, for Appellants.

Keith E. Hope of the Hope Law Firm, P.A., Key Biscayne, Daniel Clark of Clark, Charlton & Martino, P.A., Tampa, and George A. Vaka of Vaka, Larson & Johnson, P.A., Tampa, for Appellee.

NORTHCUTT, Judge.

Francis Petsch contracted with Orkin Exterminating Company to inspect his home for termites and treat any infestation. Petsch was unhappy with Orkin's services and initiated a class action against Orkin, Rollins, Inc., David Bernstein, and Rick Prothero (collectively Orkin). Petsch sought, in count I, money damages and attorney's fees under Florida's Deceptive and Unfair Trade Practices Act (FDUTPA), § 501.201-.213, Fla. Stat. (2001); in count II, restitution of all money he paid Orkin; and in count III, injunctive relief under FDUTPA and a declaration that the contract's limitation of liability provision was unenforceable.

Pursuant to a contract provision requiring the parties to arbitrate any disputes, Orkin moved to dismiss or stay the proceedings in favor of arbitration. The circuit court denied Orkin's motion, finding the agreement invalid on two grounds: first, the court found that arbitration did not provide a forum in which Petsch could exercise his statutory rights; and second, the court held that the arbitration provision was unconscionable. We agree with Orkin that both of the circuit court's reasons for denying arbitration were erroneous. We reverse and remand with directions to submit Petsch's claims to arbitration.

We review an order denying a motion to compel arbitration de novo. Stacy David, Inc. v. Consuegra, 845 So.2d 303, 306 (Fla. 2d DCA 2003). In determining whether a dispute is subject to arbitration, courts consider: "(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived." Id.; see also Flyer Printing Co. v. Hill, 805 So.2d 829, 831 (Fla. 2d DCA 2001). The only issue presented in this case is the validity of the arbitration provision.

We begin our analysis by noting that FDUTPA claims properly may be submitted to arbitration. Aztec Med. Servs., Inc. v. Burger, 792 So.2d 617, 624 (Fla. 4th DCA 2001); Value Car Sales, Inc. v. Bouton, 608 So.2d 860, 861 (Fla. 5th DCA 1992). When considering whether the legislature intended to preclude the submission of FDUTPA claims to arbitration, the Aztec court declared that to do so, "the legislature would have to state such a requirement in unambiguous text." 792 So.2d at 621 (quoting Sharpe v. Lytal & Reiter, Clark, Sharpe, Roca, Fountain, Williams, 702 So.2d 622, 624 (Fla. 4th DCA 1997)). We agree with Aztec that FDUTPA contains no such statement of legislative intent. As such, FDUTPA *262 claims may be heard in an arbitral forum.[1]

But Petsch claims that the specific language of the provision in his contract prohibits him from raising his FDUTPA claim in arbitration. The pertinent part of the arbitration clause states:

[A]ny dispute arising out of or relating to this agreement ... shall be finally resolved by arbitration administered under the commercial arbitration rules of the American Arbitration Association. Furthermore, the parties expressly agree that their mutual rights and obligations and the conduct of any arbitration proceeding shall be controlled by the Federal Arbitration Act. The arbitrator shall give effect to any and all waivers, releases, disclaimers, limitations and other terms and conditions of this agreement. The arbitrator shall consider the legal defenses raised in the arbitration....

Directly following the arbitration clause is a provision entitled "Limitation of Liability." The contested section of that provision states:

Customer expressly waives any claims in any lawsuit, arbitration or legal proceeding against Orkin for breach of contract, negligence, other tort, or violation of any statute, rule or regulation, for loss of use, diminution of value, economic, compensatory, or incidental or consequential damages of any kind, or any exemplary, treble, liquidated, or any type of punitive damages. Customer agrees that under no circumstances shall Orkin be liable for any amount greater than the amount paid by the Customer to Orkin for the termite service to be performed.

(Emphasis supplied).

Petsch reads the limitation of liability provision to preclude him from bringing a FDUTPA cause of action, i.e., "[c]ustomer... waives any claims ... for ... violation of any statute...." He contends that because the agreement requires that the arbitrator "shall give effect to any and all waivers, releases, disclaimers, [and] limitations" contained in the parties' contract, the limitation provision is incorporated into the arbitration clause. Under this interpretation, he cannot pursue his statutory rights in an arbitral forum and, because of that, the arbitration agreement is unenforceable. See, e.g., Flyer Printing, 805 So.2d at 831. The circuit court agreed with Petsch's view.

Petsch's position is reasonable given the poorly worded limitation provision in Orkin's form contract. In the quote above, we have underlined the words that give rise to ambiguity. It is unclear whether the waiver extends to all claims based on causes of action for breach of contract, torts, and statutory violations, or only to claims for certain damages arising from those causes of action. But in this appeal Orkin has conceded that the clause

merely limits the remedies available in any proceeding against Orkin, whether in arbitration or a lawsuit. The provision does not even purport to prevent *263 plaintiff from filing a claim against Orkin under the FDUTPA seeking declaratory and injunctive relief and a refund of the contract price. Put simply, nothing in the limitation of liability provision prevents [Petsch] from asking the arbitrator to hear his FDUTPA claim on the merits, just as a court would.

Reply br. at 4-5.

Both federal and Florida public policy favor resolving disputes through arbitration when the parties have agreed to do so. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 25, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991); K.P. Meiring Constr., Inc. v. Northbay I & E, Inc., 761 So.2d 1221, 1225 (Fla. 2d DCA 2000). In keeping with this policy, we will construe the Orkin contract, including the arbitration and the limitation provisions, in a way that gives a reasonable meaning to all the terms, rather than in a way that will render part of the contract of no effect. See State Farm Fire & Cas. Co. v. Licea, 685 So.2d 1285, 1287 (Fla.1996). We accept Orkin's assertion that nothing in the arbitration clause or the limitation provision prevents Petsch from raising his FDUTPA claim, or any other claims he may have against Orkin, in the arbitration.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

AUSTIN COMMERCIAL, L. P. v. L. M. C. C. SPECIALITY CONTRACTORS, INC.
268 So. 3d 215 (District Court of Appeal of Florida, 2019)
Kendall Imports, LLC v. Diaz
215 So. 3d 95 (District Court of Appeal of Florida, 2017)
Howse v. DirecTV, LLC
221 F. Supp. 3d 1339 (M.D. Florida, 2016)
Fi-Tampa, LLC v. Kelly-Hall
135 So. 3d 563 (District Court of Appeal of Florida, 2014)
In re Tousa, Inc.
503 B.R. 499 (S.D. Florida, 2014)
Zephyr Haven Health & Rehab Center, Inc. v. Hardin ex rel. Hardin
122 So. 3d 916 (District Court of Appeal of Florida, 2013)
Pulte Home Corp. v. Bay at Cypress Creek Homeowners' Ass'n
118 So. 3d 957 (District Court of Appeal of Florida, 2013)
Spring Lake NC, LLC v. Beloff
110 So. 3d 52 (District Court of Appeal of Florida, 2013)
Crewe v. Rich Dad Education, LLC
884 F. Supp. 2d 60 (S.D. New York, 2012)
SA-PG SUN CITY CENTER, LLC v. Kennedy
79 So. 3d 916 (District Court of Appeal of Florida, 2012)
Tampa HCP, LLC v. Bachor
72 So. 3d 323 (District Court of Appeal of Florida, 2011)
FL-Carrollwood Care, LLC v. Gordon
72 So. 3d 162 (District Court of Appeal of Florida, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
872 So. 2d 259, 2004 WL 221065, Counsel Stack Legal Research, https://law.counselstack.com/opinion/orkin-exterminating-co-inc-v-petsch-fladistctapp-2004.