Arbitration & Mediation

Further Analysis of 4th DCA's Slusser Decision

By Christopher B. Hopkins, Esq.

We were intrigued by the February 20 Fourth DCA decision in Slusser v. Life Care Centers of America et al. and the court's holding that the "police power" argument failed when the plaintiff argued it overcame the right to arbitration. So, braving State-wide power outages, non-lawyer sharks, and massive storms, we made that punishing trip two blocks to get the briefs. So let's dig a little deeper to see the arguments and authorities.

The Initial Brief (Plaintiff) cites 24 cases supporting their Florida statutory "police power" theory and but how many of those 24 citations are Florida cases....? Eight. And few cases use the "police power" words. Hmm. Generally speaking, their argument is that Chapter 400 confers a public at large benefit which cannot be waived, namely, the right to bring suit in a court of competent jurisdiction. They compare that to a building or health code. The Reply is more of the same.

The Answer Brief (Defendant) paints a larger factual picture, albeit one which was not entirely necessary, underscoring the strength of the unconscionability argument. Indeed, they clearly would (or did) win the unconscionability issue. They point out that a multitude of nursing home cases are sent to arbitration, statutory rights are waived all the time, and this is not a public-at-large benefit. They point out that Chapter 400 also does not mandate litigation in a court of competent jurisdiction. They also dug out the nugget of the Digati case, which we mentioned in our prior post.

In Slusser, the Court relied on Digati and shot down the police power theory. Probably a good idea since, as we've mentioned, the same plaintiff firm in Slusser has tried to seed this theory in another pending appeal (in that case, the rubrick of unconscionability and public policy was also tossed around).

But the Defendant-Appellee arguably hit on the easier and better answer. Chapter 400 does not mandate that a statutory claim be brought in court. It says "may" not "shall." We're somewhat surprised that plain analysis did not carry the day.

While this "police power" argument -- borrowed from a largely insignificant regulatory case -- involved some sagacious thinking, our assessment is that it should die on the vine. That said, we'll see if the Second DCA buys it in the pending appeal. It would not be the first time that the Second and Fourth don't agree on arbitration.

Full post as published by Florida Arbitration Law on February 28, 2008 (boomark / email).