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Florida Second DCA rules that trial court erred in finding assisted living facility’s arbitration agreement unconscionable, concluding that record did not support required finding of procedural unconscionability

On October 13, 2021, in Osprey Health Care Center, LLC. Et al, v. Pascazi, No. 2D19-4787, the Florida Second DCA reversed a trial court ruling which had held that the defendant assisted living facility’s Mediation and Arbitration Agreement with the plaintiff was void and unenforceable because it was unconscionable. The plaintiff had sued the assisted living facility for negligence, breach of fiduciary duty, and violations of §415.1111, Florida Statutes (2016), which creates a statutory right of action for “vulnerable adults who has been abused, neglected, or exploited.” The Second DCA noted that unconscionability is a valid defense to enforcement of an arbitration agreement. The party seeking to avoid arbitration must establish that the arbitration agreement is both procedurally unconscionable, relating to the manner that the contract was executed, and substantively unconscionable, relating to whether the terms of the contract are so outrageously unfair as to shock the conscience. The Second DCA cited, inter alia, Basulto v. Hialeah Auto., 141 So. 3d 1145, 1158 (Fla. 2014) and Zephyr Haven Health & Rehab Ctr., Inc. v. Hardin ex rel. Hardin, 122 So. 3d 916, 920 (Fla. 2d DCA 2013). The Second DCA concluded that the fact that the plaintiff felt rushed during the contract signing meeting with the defendant because she had a plane to catch and merely skimmed the documents before signing them did not support a finding of procedural unconscionability. On a separate issue, the Second DCA ruled that although the arbitration agreement’s statute of limitations clause, purporting to apply a one-year SOL, was void because it conflicts with the two-year SOL prescribed by Fla. Stat. § 429.296, it was severable from the rest of the agreement.

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