        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))).

                                       2
      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).


                                     3
   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

                                      4
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.”


                                     5
    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).

                                      6
     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

                                      7
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.

                                        8
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

                                       9
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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