Two Appellate Courts Certify Questions to the Florida Supreme Court

11^th Circuit Certifies Question to the Florida Supreme Court about the proper interpretation of an exculpatory clause

Pier 1 Cruise Experts v. Revelex Corporation, No. 17-13956 (11th Circuit. 2019)

“Dear Florida Supreme Court: We need your help.”  This is how the 11^th Circuit opened its opinion in Pier 1 Cruise Experts v. Revelex Corporation, in which the Court certifies the following question:

Is a contractual “exculpatory clause” that purports to insulate one of the signatories from “any … damages regardless of kind or type . . . whether in contract, tort (including negligence), otherwise” enforceable?  Or, alternatively, does the clause confer such sweeping immunity that it renders the entire contract in which it appears illusory?  Or finally, might the clause plausibly be construed so as to bar some but not all claims and thus save the contract from invalidation?

Pier 1 hired Revelex to build a website.  The agreement between the parties included the clause at issue, which stated in relevant part:

Revelex shall not be liable . . . for any direct, special, indirect, incidental, consequential, punitive, exemplary or any other damages regardless of kind or type (whether in contract, tort (including negligence), or otherwise), including but not limited to loss of profits, data, or goodwill, regardless of whether Revelex knew or should have known of the possibility of such damages . . . . Customer waives any and all claims, now known or later discovered, that it may have against Revelex and its licensors and vendors arising out of this agreement and the services.

Pier 1 sued Revelex in federal court, ultimately moving forward with claims for breach of contract and negligent misrepresentation.  At the trial level, both parties filed motions for summary judgment, each contending the clause should be read in its favor.  Revelex argued the exculpatory clause purported to shield it from any damages regardless of type, and thus barred Pier 1’s claims.  Pier 1 argued the broad language of the clause rendered the contract unenforceable against Revelex and thus illusory.  The trial court agreed with Pier 1.

On appeal the 11th circuit contemplated various issues in the opinion; however, the only one meriting discussion centers around how to handle an exculpatory clause in the contract executed by both parties.  The 11th circuit addressed two questions: (1) when and under what circumstances are exculpatory clauses enforceable as a general matter, and (2) what is the effect of the particular exculpatory clause at issue.

Regarding the first question, the Court recognized exculpatory clauses are not looked upon with favor^[1], but are enforceable so long as the contracting parties have equal bargaining power and the clause provisions are clear and unambiguous.^[2]  With respect to the latter requirement, the intention to be relieved from liability must be made clear and unequivocal and the wording must be so clear and understandable that an ordinary and knowledgeable person would know what he is contracting away.^[3]

The second question presented a greater challenge to the 11th Circuit.  The opinion identified three possibilities, all of which had some support in Florida law:

• First, the court could simply enforce the clause according to its terms and bar all of Pier 1’s clams.  The Court noted Florida courts have enforced some pretty broad exculpatory clauses without suggesting they rendered illusory or otherwise invalided the contracts in which they appeared.
• Second, there was the opinion reached by the trial court, which held the exculpatory clause immunizes Revelex from essentially all liability and thereby renders the entire agreement illusory and void ab initio.  The opinion noted that basic requirements for a valid contract are offer, acceptance, consideration, and sufficient specification of essential terms.  The Court recognized there was Florida judicial precedent which stated that when an illusory promise is made, it cannot serve as consideration, and to prevent a contract from being illusory, a non-breaching party must have both the ability to sue for damages and the ability to collect on the resulting judgment.
• Lastly, the Court recognized an “in-between position.”  Specifically, to construe the clause to bar only negligence claims, not breach of contract claims.  The Court’s opinion appears to recognize the Florida law supporting such an outcome are not quite on point with the contract between Revelex and Pier 1.  The Court seemingly wanted to reach a decision which provided an equitable outcome, but did not feel that such a result was perfectly supported by prior precedent.

Ultimately, the 11th Circuit declined to make any decision, and punted the question to the Florida Supreme Court.  The last time the Florida Supreme Court addressed an exculpatory clause case was in Sanislo v. Give Kids the World.^[4]  In Sanislo, the Florida Supreme Court addressed and resolved a then-existing conflict within Florida’s district courts regarding what specific language, if any, was required to be contained in an exculpatory clause in order for the clause to be considered enforceable.  It held that an exculpatory clause is unambiguous and subject to enforcement when the intention to be relieved from liability was made clear and unequivocal and the wording was so clear and understandable that an ordinary and knowledgeable person will know what he or she is contracting away.

What the Florida Supreme Court, in its newly constituted and more conservative iteration will do is anyone’s guess.

Fifth District Reverses Trial Court’s Order Granting Summary Judgment, but Certifies Question Asking if There Should be an Exception to the Summary Judgment Standard When There is Video Evidence Which Negates the Opponent’s Factual Assertions.

Miguel Lopez v. WilsonArt, LLC et al, 44 Fla. L Weekly D1808a, Fla. 5th DCA, July 12, 2019

This case involved a rear end auto accident resulting in the death of the rear end driver.  The defendant driver, Rosario was driving a freightliner truck on a six-lane highway when the decedent, Jon Lopez crashed into the rear of the freightliner, causing Lopez’s death.  Lopez’s estate subsequently brought an action against Rosario.

At the trial level, Rosario testified he was in the center of the three lanes headed eastbound.  He began to slow as he approached an intersection, and then felt an impact to the rear of his truck.  His truck was equipped with a dashboard camera.  The footage showed Rosario driving in the center lane, and as the truck gradually came to a stop at a red light, it experienced a large impact, forcing it to veer to the left and crash into the car in front of it.  It was undisputed that the impact was the result of being struck from behind by Lopez.

Rosario moved for summary judgment based on Florida’s rebuttable presumption of negligence for a rear driver involved in a rear end accident.  In response Lopez’s estate presented an eye-witness to the collision who testified that Rosario suddenly changed lanes just prior to impact, swerving from the center lane to the left.  The estate also presented the affidavit of its expert, who concluded that part of the Rosario’s freightliner was in the right lane when the collision occurred.^[5]

At the hearing on the motion for summary judgment, Rosario argued the estate could not overcome the presumption of negligence because the video flatly contradicted the witness testimony, rendering it incompetent evidence.  The estate argued the expert’s affidavit created a genuine issue of material fact as to whether Rosario kept his truck in a single lane, and the conflicting evidence at least created a question of material fact as to Rosario’s negligence.

The trial court granted summary judgment, finding the video evidence blatantly contradicted the eye witness testimony and expert opinion testimony.  In essence, even though there was testimonial evidence provided by the plaintiff which offered a differing version of the facts, the trial court found that, in light of the video evidence, the testimonial evidence was simply not credible.

On appeal the 5th district reversed the trial court.  It noted that summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.  If the record raises the slightest doubt that material issues could be present, that doubt must be resolved against the moving party and the motion for summary judgment must be denied.  Here, even though there was video evidence, the fact that the estate had submitted the testimony and affidavit of witnesses who provided a contradictory factual scenario, was enough to preclude summary judgment.

Even though the 5th district reversed, it recognized how technological advances in society are increasing the likelihood of video and digital evidence being used in trials, and certified an interesting question to the Florida Supreme Court:

Should there be an exception to the present summary judgement standards that are applied by state courts in Florida that would allow for the entry of final summary judgment in favor of the moving party when the movant’s video evidence completely negates or refutes any conflicting evidence presented by the non-moving party in opposition to the summary judgment and there is no evidence suggesting the videotape evidence has been altered or doctored?

[1] Ivey Plants, Inc. v. FMC Corp., 282 So. 2d 205, 208 (Fla. 4^th DCA 1973).

[2] See Cooper v. Meridian Yachts, Ltd., 575 F.3d 1151, 1168 n.9 (11^th Cir. 2009) (citing Key Biscayne Divers, Inc. v. Maine Stadium Enters., Inc., 490 So. 2d 137, 138 (Fla. 3d Dist. Ct. App. 1986).

[3] Cain v. Banka,  932 So. 2d 575, 578 (Fla. 5^th DCA 2006)

[4] Sanislo v. Give Kids the World, 157 So. 3d 256 (Fla. 2015).

[5] This conclusion was based, in large part on the deposition testimony of the eye witness.

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