DIVESTON MERLIEN v. JM FAMILY ENTERPRISES, INC., SHERIDIAN 441, LLC and BENDLES RENTALS, LLC

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

DIVESTON MERLIEN,

Appellant,

v.

JM FAMILY ENTERPRISES, INC., SHERIDAN 441, LLC and BENDLES

RENTALS, LLC,

Appellees.

No. 4D19-2911

[July 22, 2020]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,

Broward County; Raag Singhal, Judge; L.T. Case No. CACE17-007427 21.

Neil Rose, Esq., Hollywood, and Morgan Weinstein of Weinstein Law,

P.A., Fort Lauderdale, for appellant.

Kansas R. Gooden of Boyd & Jenerette, P.A., Miami, and Ian E. Waldick

of Boyd & Jenerette, P.A., Jacksonville, for appellee JM Family

Enterprises, Inc.

FORST, J.

Appellant Diveston Merlien (“the plaintiff”) appeals from the trial court’s

final summary judgment entered in favor of JM Family Enterprises (“JM”).

The trial court found that the plaintiff’s negligence lawsuit was precluded

by an exculpatory clause in his employment agreement. On appeal, the

plaintiff argues that the disclaimer at issue was void for ambiguity and,

even if the disclaimer was properly considered and not void for ambiguity,

it was nevertheless unenforceable because it contravenes Florida public

policy. We disagree and affirm. 1

1 The plaintiff also claims the motion for summary judgment should have been

dismissed on procedural grounds, contending that the disclaimer proffered to the

trial court was unauthenticated hearsay. Below, the plaintiff failed to timely and

properly object to JM’s filing of an affidavit prepared for the purpose of

authenticating the disclaimer. Nor did he challenge the adequacy or sufficiency

of the affidavit with respect to authentication. Accordingly, his arguments on

appeal are not preserved, and we find that the trial court did not err by

Background

The plaintiff was employed by AlliedBarton, a firm that provides

security services for various clients. He was assigned to work as a security

guard for one of those clients, JM The plaintiff was allegedly injured due

to a slip and fall on stairs at the JM facility where he was assigned to work.

He subsequently filed a premises liability suit against JM, alleging that his

slip and fall was proximately caused by JM’s negligent maintenance of the

stairs.

The primary focus of this appeal is the enforceability of a waiver which

the plaintiff signed as a condition of employment that prohibits suit

against any customer of AlliedBarton for injuries covered by the workers’

compensation statutes. The waiver provides:

WORKER’S COMPENSATION DISCLAIMER

Payment on Work-Related Injuries

I understand that state Workers’ Compensation statues [sic]

cover work-related injuries that may be sustained by me. If I

am injured on the job, I understand that I am required to

notify my manager immediately. The manager will inform me

of my state’s Workers’ Compensation law as it pertains to

seeking medical treatment. This is to assure that reasonable

medical treatment for an injury will be paid for by

Alliedbarton’s [sic] Workers’ Compensation insurance.

As a result, and in consideration of AlliedBarton Security

Services offering me employment, I hereby waive and forever

release any and all rights I may have to:

- make a claim, or

- commence a lawsuit, or

- recover damages or losses

from or against any customer (and the employees of any

customer) of AlliedBarton Security Services to which I may be

considering the disclaimer during the summary judgment proceedings. See

Schroeder v. MTGLQ Inv’rs, L.P., 290 So. 3d 93, 96 (Fla. 4th DCA 2020) (“[T]o be

preserved for appeal, the specific legal ground upon which a claim is based must

be raised at trial and a claim different than that will not be heard on appeal.”

(quoting Aills v. Boemi, 29 So. 3d 1105, 1109 (Fla. 2010) (internal quotation

marks omitted))).

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assigned, arising from or relating to injuries which are covered

under the Workers’ Compensation statues [sic].

Two years after the plaintiff filed his complaint, JM filed a motion for

summary judgment, arguing that the plaintiff waived his right to bring suit

by executing the above waiver at the commencement of his employment.

After hearing argument from both parties, the trial court granted JM’s

motion for summary judgment. This timely appeal followed.

Analysis

“The standard of review of an order granting summary

judgment is de novo.” Fini v. Glascoe, 936 So. 2d 52, 54 (Fla.

4th DCA 2006). When “the enforceability of [a] pre-injury

release is a question of law arising from undisputed facts, the

standard of review is de novo.” Kirton v. Fields, 997 So. 2d

349, 352 (Fla. 2008).

Brooks v. Paul, 219 So. 3d 886, 887 (Fla. 4th DCA 2017); see also Sanislo

v. Give Kids the World, Inc., 157 So. 3d 256, 260 (Fla. 2015) (“The

enforceability of a pre-injury exculpatory clause arising from undisputed

facts is reviewed de novo.”).

I. Whether the disclaimer was ambiguous and unenforceable.

“Public policy disfavors exculpatory contracts because they relieve one

party of the obligation to use due care. . . . Nevertheless, because of a

countervailing policy that favors the enforcement of contracts, as a general

proposition, unambiguous exculpatory contracts are enforceable unless

they contravene public policy.” Sanislo, 157 So. 3d at 260 (internal

citations omitted).

Florida courts have upheld the enforceability of exculpatory provisions

in contracts only when the language of the provision clearly and

unambiguously communicates the scope and nature of the disclaimer.

See id. at 260–61; Fresnedo v. Porky’s Gym III, Inc., 271 So. 3d 1185, 1186

(Fla. 3d DCA 2019); Brooks, 219 So. 3d at 888. “Such provisions are

deemed to be unambiguous and enforceable when the language

unequivocally demonstrates a clear and understandable intention for the

defendant to be relieved from liability such that an ordinary and

knowledgeable person will know what he or she is contracting away.”

Pillay v. Pub. Storage, Inc., 284 So. 3d 566, 569 (Fla. 4th DCA 2019) (citing

Sanislo, 157 So. 3d at 260-61).

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In addressing the trial court’s determination that the AlliedBarton

release was clear and unambiguous, the plaintiff cites to UCF Athletics

Ass’n Inc. v. Plancher, 121 So. 3d 1097 (Fla. 5th DCA 2013), quashed in

part on other grounds, 175 So. 3d 724 (Fla. 2015), and argues that the

waiver at issue in that case is analogous to AlliedBarton’s current

disclaimer. We disagree and find the case to be distinguishable.

In Plancher, the parents of a University of Central Florida football player

brought a negligence action against the university after their son collapsed

and died during conditioning drills during practice. Id. at 1099. In

affirming the decision of the trial court, the Fifth District found the

exculpatory clause contained in “the agreement to participate clause of the

Medical Examination and Authorization Waiver” to be ambiguous and

unenforceable. Id. at 1099, 1103.

In pertinent part, the exculpatory clause at issue in Plancher contained

the following language:

I recognize the importance of following all instructions of the

coaching staff, strength and conditioning staff, and/or Sports

Medicine Department. Furthermore, I understand that the

possibility of injury, including catastrophic injury, does exist

even though proper rules and techniques are followed to the

fullest. . . .

In consideration of the University of Central Florida Athletic

Association, Inc. permitting me to participate in intercollegiate

athletics and to engage in all activities and travel related to

my sport, I hereby voluntarily assume all risks associated with

participation and agree to exonerate, save harmless and

release the University of Central Florida Athletic Association,

Inc., its agents, servants, trustees, and employees from any

and all liability, any medical expenses not covered by the

University of Central Florida Athletic Association's athletics

medical insurance coverage, and all claims, causes of action

or demands of any kind and nature whatsoever which may

arise by or in connection with my participation in any

activities related to intercollegiate athletics.

The terms hereof shall serve as release and assumption of risk

for my heirs, estate, executor, administrator, assignees, and

all members of my family.

Id. at 1100-01. The Fifth District explained its determination that the

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release language was ambiguous, and the release was thus unenforceable:

This preamble, when coupled with a clause that does not

expressly state that [the decedent] would be waiving a

negligence action, could have easily led [the decedent] to

believe that UCFAA would be supervising his training and

instructing him properly (non-negligently), and that he was

only being asked to sign the exculpatory clause to cover

injuries inherent in the sport-that could occur “even though

proper rules and techniques are followed to the fullest.”

Id. at 1102.

The ruling in Plancher is similar to the rulings of two other cases cited

in the plaintiff’s initial brief. In Brooks, we invalidated an exculpatory

clause in an agreement between a surgeon and patient because the

language was unclear and ambiguous. 219 So. 3d at 891. In so holding,

we explained that the release was unenforceable because the disclaimer

was “qualified” by the statement that the surgeon would “do the very best

to take care of [the patient] according to community medical standards”;

this rendered the “purported release” contradictory and ambiguous. Id.

We compared the release to the waiver in Goyings v. Jack & Ruth Eckerd

Foundation, 403 So. 2d 1144 (Fla. 2d DCA 1981), disapproved of on other

grounds by Sanislo, 157 So. 3d 256, which also included “additional

language” that “create[d] ambiguity about exactly what type of claims are

being released.” Brooks, 219 So. 3d at 891. In Goyings, ambiguity arose

in a children’s camp contract in which the camp agreed to take reasonable

precautions to assure the safety of the children, yet also sought to disclaim

all liability. Goyings, 403 So. 2d at 1145-46. The court held this language

to be ambiguous and contradictory because the camp “[b]y their own

choice of language . . . agreed to take reasonable precautions to assure

[the child’s] safety.” Id. at 1146.

The instant case is clearly distinguishable from Plancher, Brooks, and

Goyings, as the disclaimer at issue here does not contain a misleading

preamble or otherwise suggest that either AlliedBarton or its clients will

take responsibility for an employee’s safety when working at client

facilities. The disclaimer is limited to injuries which are covered under the

workers’ compensation statutes and makes no promises or

representations other than “state Workers’ Compensation statu[t]es cover

work-related injuries that may be sustained by [the employee],” and that

“reasonable medical treatment for an injury will be paid for by

[AlliedBarton’s] Workers’ Compensation insurance.”

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One other case cited by the plaintiff to support his ambiguity argument

is Tatman v. Space Coast Kennel Club, Inc., 27 So. 3d 108 (Fla. 5th DCA

2009). In that case, there was some ambiguity as to whether the

disclaimer released claims for injuries caused by one dog to another dog

and/or to a person. Id. at 110-11. The court faulted the waiver agreement

for its failure to “define whose injuries are covered in a circumstance, even

though there are multiple possibilities.” Id.

No such ambiguity exists here, as the disclaimer specifically explains

the rights released (“all rights . . . to make a claim, or commence a lawsuit,

or recover damages or losses”); the beneficiaries of that release (“any

customer (and the employees of any customer) of AlliedBarton Security

Services to which I may be assigned”); and the situations in which this

release applies (“arising from or relating to injuries which are covered

under the Workers’ Compensation statu[t]es”). As in Sanislo, the

exculpatory clause here is “unambiguous and enforceable [because] 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 w[ould] know what he or she is contracting away.”

157 So. 3d at 260-61.

II. Whether the disclaimer violates Florida public policy.

Even waivers that are clear and unambiguous may nevertheless be

unenforceable if they contravene Florida public policy. See id. at 260.

However, “[a] contract is not void, as against public policy, unless it is

injurious to the interests of the public or contravenes some established

interest of society.” Griffin v. ARX Holding Corp., 208 So. 3d 164, 170 (Fla.

2d DCA 2016) (quoting Atl. Coast Line R.R. Co. v. Beazley, 45 So. 761, 785

(Fla. 1907)) (alteration omitted).

The plaintiff argues that even if AlliedBarton’s disclaimer is not void for

ambiguity, it should be found unenforceable based on public policy

considerations. Specifically, the plaintiff argues that “part of the purpose

of the workers’ compensation statute is to permit negligence claims against

a third-party tortfeasor—in this case the customers of AlliedBarton.”

In making this argument, the plaintiff references section 440.39,

Florida Statutes (2017), which provides that an employee injured in the

course of his or her employment by the negligent actions of a third-party

tortfeasor “may accept compensation benefits under the provisions of this

law, and at the same time such injured employee . . . may pursue his or

her remedy by action at law or otherwise against such third-party

tortfeasor.” § 440.39, Fla. Stat. (2017) (emphasis added).

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The plain language of this section establishes a permissive rather than

mandatory option on the part of the employee to pursue an action at law.

Agile Assurance Grp. Ltd. v. Palmer, 147 So. 3d 1017, 1018 (Fla. 2d DCA

2014) (“Generally, use of the word may deems relevant language

permissive.”). Here, the plaintiff contracted away his right under section

440.39 to assert a claim against a third-party tortfeasor. “[B]ecause of a .

. . policy that favors the enforcement of contracts, as a general proposition,

unambiguous exculpatory contracts are enforceable unless they

contravene public policy.” Sanislo, 157 So. 3d at 260.

The disclaimer did not “contravene public policy.” It conforms to public

policy. Section 440.015, Florida Statutes (2017), states:

It is the intent of the Legislature that the Workers’

Compensation Law be interpreted so as to assure the quick

and efficient delivery of disability and medical benefits to an

injured worker and to facilitate the worker’s return to gainful

reemployment at a reasonable cost to the employer. . . . The

workers’ compensation system in Florida is based on a mutual

renunciation of common-law rights and defenses by

employers and employees alike.

§ 440.015, Fla. Stat. (2017). Our Supreme Court offered a similar view:

Fundamentally, the workers’ compensation system

establishes a system of exchange between employees and

employers, as well as employees and insurance carriers, that

is designed to promote efficiency and fairness. Our governing

precedent, as well as that of our district courts, has recognized

that under this no-fault system, the employee relinquishes

certain common-law rights with regard to negligence in the

workplace and workplace injuries in exchange for strict

liability and the rapid recovery of benefits.

Aguilera v. Inservices, Inc., 905 So. 2d 84, 90 (Fla. 2005).

Here, it is undisputed that the plaintiff’s injury fell under the scope of

the workers’ compensation statutes and that he received payment for his

injuries under AlliedBarton’s policy. This result places the plaintiff in the

same position as any AlliedBarton employee who may be injured while

working directly for the employer on the employer’s premises. See Suarez

v. Transmontaigne Servs., Inc., 127 So. 3d 845, 847 (Fla. 4th DCA 2013)

(“Where an employee covered by the workers’ compensation act is injured

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on the job, the employee’s sole remedy against his employer is through the

provisions of the act. His employer is immune from negligence claims

arising out of the same injury.” (citing § 440.11(1), Fla. Stat. (2012)).

AlliedBarton’s disclaimer does not subvert the workers’ compensation

scheme, but rather, fully utilizes the statutory scheme as the plaintiff’s

sole means of recovery. In no way does the disclaimer interfere with “the

quick and efficient delivery of disability and medical benefits to an injured

worker.” See § 440.015, Fla. Stat. (2017).

We also note that this waiver extends only to negligent conduct and

does not infringe on the public policy prohibition of waiving liability for

intentional torts, as the waiver only extends to injuries covered by workers’

compensation. See Aguilera, 905 So. 2d at 90 (“Functionally, the worker’s

compensation system limits liability only for negligent workplace conduct

which produces workplace injury, but does not extend to immunize

intentional tortious conduct.”); Turner v. PRC, Inc., 754 So. 2d 683, 687

(Fla. 2000) (“Today we reaffirm our prior decisions recognizing, as have our

district courts and many jurisdictions around the country, that workers’

compensation law does not protect an employer from liability for an

intentional tort against an employee.”), superseded by statute on other

grounds, § 440.11(1)(b), Fla. Stat. (2003), as noted in R.L. Haines Constr.,

LLC v. Santamaria, 161 So. 3d 528, 530-31 (Fla. 5th DCA 2014); see also

§ 440.11(1)(b), Fla. Stat. (2017) (the intentional tort exception).

At least two courts from other states have considered this same

AlliedBarton disclaimer and found that it did not contravene public policy.

See Bowman v. Sunoco, Inc., 65 A.3d 901 (Pa. 2013); Brown v. 1301 K

Street Ltd. P’ship, 31 A.3d 902 (D.C. 2011). 2

In Bowman, the Pennsylvania Supreme Court accepted jurisdiction to

determine whether AlliedBarton’s disclaimer contravened Pennsylvania

public policy. 65 A.3d at 908. The court ruled that the waiver did not

violate the text of section 204(a) of Pennsylvania’s Workers’ Compensation

Act—a statutory provision prohibiting agreements that waive a claim for

2 The Supreme Court of New Jersey has also considered this waiver and held that

it violated New Jersey public policy. See Vitale v. Schering-Plough Corp., 174 A.3d

973 (N.J. 2017). In addition to finding the waiver invalid on the grounds that it

violated N.J.S.A. 34:15-40 (Section 40)—a provision resembling section 440.39,

Florida Statutes—the court found that it also violated N.J.S.A. 34:15-39 (Section

39)—a statutory provision without a Florida counterpart. Id. at 986. Section 39

provides: “No agreement, composition, or release of damages made before the

happening of any accident . . . shall be valid or shall bar a claim for damages for

the injury resulting therefrom, and any such agreement is declared to be against

public policy.” N.J.S.A. 34:15-39.

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damages prior to an injury. Id. The court explained that the workers’

compensation statute was intended to apply to agreements barring a claim

against an employer, rather than to claims against a third party. Id. After

examining the history of the Pennsylvania workers’ compensation statute,

the court determined that the legislature provided two alternative tracks

by which an employee could recover for a workplace injury. Id. The

employee could recover under a statutory scheme or through a traditional

action at law. Id. The court held:

[B]ecause the Act once provided for a dual system of recovery,

which made it a violation of public policy for an employer to

avoid both recovery tracks, and continues to provide for an

action at law when the employer is uninsured, we conclude

public policy is not violated where, as here, the employee is

absolutely covered under one of those two tracks, namely, the

compensation scheme provided by Article III.

Id. The court concluded by noting the similar decisions of other courts

and stated:

Appellant was not forced to sign the release, and the release

did not in any way prevent her from receiving compensation

for her work-related injuries as provided by the Act. As the

Appeals Court of Massachusetts found in Horner v. Boston

Edison Company, 45 Mass. App. Ct. 139, 695 N.E.2d 1093

(1998), the disclaimer here “extinguishes only the employee’s

right to recover additional amounts as a result of a work-

related injury for which the employee has already received

workers’ compensation benefits.” Id. at 1095. Similarly, the

Supreme Court of Arkansas found, with facts nearly identical

to the present case, a similar disclaimer did not violate public

policy because it did not indicate the employer was

“attempting to escape liability entirely, but [was] instead,

attempting to shield its clients from separate tort liability for

those injuries that are covered by workers’ compensation . . .

.” Edgin v. Entergy Operations, Inc., 331 Ark. 162, 961 S.W.2d

724, 727 (1998).

Id. at 910 (alteration in original) (footnote omitted).

Similar to the Pennsylvania decision, the District of Columbia Court of

Appeals found that the exculpatory clause at issue here did not violate

public policy. See Brown, 31 A.3d at 906-07. The court explained that it

had invalidated exculpatory clauses disclaiming liability for self-dealing by

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a personal representative of a will and in the housing context with

landlords trying to contract around the implied warranty of habitability.

Id. The court continued, however, by explaining: “[i]n this case . . . we find

nothing violative of public policy in an employer’s choice to protect its

customers from liability for workplace injuries, choosing instead to

compensate its employees itself exclusively through workers’

compensation.” Id. at 907. The court concluded by noting that the

plaintiff voluntarily entered into the agreement and declined to invalidate

the contract on the basis that it was offered on a “take it or leave it” basis.

See id. at 907, n.4 (quoting Moore v. Waller, 930 A.2d 176, 182 (D.C.

2007)).

Here, as in Bowman and Brown, the plaintiff here was not coerced into

signing the agreement and voluntarily agreed, as a condition of

employment, to limit his avenues for recovery with respect to any future

injuries to the State’s workers’ compensation program. The disclaimer was

limited in both scope and application and did not prevent the “the quick

and efficient delivery of disability and medical benefits to an injured

worker.” See § 440.015, Fla. Stat. (2017). As such, we hold that

AlliedBarton’s disclaimer is not void based on public policy considerations.

Conclusion

We agree with the trial court that the disclaimer signed by the plaintiff

is unambiguous, not in violation of Florida public policy and, thus,

enforceable. Accordingly, the trial court’s final summary judgment is

affirmed.

Affirmed.

LEVINE, C.J., and DAMOORGIAN, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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