Clauses from Contracts

How to Obtain a Jury Trial in Florida When There is a Jury Waiver in Your Contract (Revival of the “Advisory Jury”)

A new case revives an old method to avoid an express contractual jury waiver by asking for an “advisory jury.” Here’s how it works for plaintiffs and how lawyers who write contracts can address it. For years I have recommended that clients consider an express jury waiver in their contracts …

Clauses from Contracts

Florida Court Approves Exculpatory Clause for Rental Agreement (Pillay v. Public Storage)

When drafting contracts, it is advisable to use contract language which courts have already approved and enforced. This is especially true for exculpatory clauses, which must be clear and unambiguous. In Vignaraj Munsami Pillay v. Public Storage, Inc., Florida’s Fourth District considered an appeal arising from a dispute between a …

Clauses from Contracts

Another Exculpatory Clause Fails Under Florida Law (Fresnedo v. Porky’s Gym III)

To bind a customer or business partner to a liability waiver in a contract, using what is called an “exculpatory clause,” requires specific contract-drafting skills. This is a lesson which the (apparently now closed) business learned in Lazaro Fresnedo v. Porky’s Gym III, Inc. In the Fresnedo case, the majority …

Arbitration Mediation

Florida Courts Issue Three Arbitration-Related Opinions in November 2018

Florida cases involving disputes over the enforcement of arbitration most frequently arise out of auto sales or long term care facility contracts.  These three cases from late November 2018 fit the bill.  The topics are: waiver of the right to arbitration, parties to the agreement, and severance clauses.  Shamelessly, one …

Clauses from Contracts

Can a Florida Contract Waive Liability for Special, Indirect, Punitive, and Consequential Damages?

According to a new case from the First District, yes.  But be careful relying too heavily on this case of first impression, which may go a little too far without enough authorities. While this is a construction case, these issues apply to ALL business contracts. The case is Keystone Airpark …

Clauses from Contracts

Florida Court Approves Forum Selection Clause As Mandatory and Enforceable

It’s not often that banking cases are “fascinating,” but the facts underlying Pablo Antoniazzi v. Hamed Wardak certainly are interesting.  More importantly, the Third District provides some guidance to lawyers writing and seeking to enforce (or avoid) a mandatory forum selection clause. First let’s discuss the points of law in the …

Arbitration Mediation

Lessons from Google AdWords Arbitration Clause: Novation, Retroactive Application, Scope

Google’s arbitration and class action waiver provisions in their AdWords agreement provides some lessons for lawyers who draft contracts, particularly ones accepted online and updated via notice, as well as lawyers who litigate over enforcement of arbitration.  The recent case of Mark Trudeau and Troy Martial Arts, Inc. v. Google …

Arbitration Mediation

Can a Company Add an Arbitration Clause to an Existing Contract that is Retro-Active?

For ongoing service agreements — which range from credit card, internet advertising, and even nursing home admissions — often there is a clause which permits one side to “update” its service terms and, in order to effect fairness, the other party may cancel the service in lieu of accepting the …