         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                             NOT FINAL UNTIL TIME EXPIRES TO
                                             FILE MOTION FOR REHEARING AND
                                             DISPOSITION THEREOF IF FILED


MARIANNE KLEMISH, INDIVIDUALLY,
ETC., ET AL,

             Appellants,

 v.                                                 Case No. 5D15-2574

ALEX VILLACASTIN, M.D., ET AL.,

             Appellees.

________________________________/

Opinion filed July 15, 2016

Non-Final Appeal from the Circuit Court
for Marion County,
Edward L. Scott, Judge.

Jessie L. Harrell and Bryan s. Gowdy, of
Creed & Gowdy,P.A., Jacksonville, and
Kevin J. Carden, Bounds Law Group,
Maitland, for Appellants.

Richard Benjamin Wilkes and David M.
Caldevilla, of De La Parte, Gilbert &
Bales, Tampa, for Appellee, Kindred
Hospitals East, LLC d/b/a Kindred
Hospital Ocala.

No attorney for remaining Appellees.


PALMER, J.

      Frank and Marianne Klemish appeal the trial court's non-final order compelling

arbitration of their medical malpractice claims against Kindred Hospitals East, LLC
(Hospital).1 Determining that the arbitration agreement entered into by the parties is void

because it violates public policy, we reverse.

       Marianne was admitted to the Hospital for therapy and post-surgical care. She

signed an arbitration agreement entitled “ALTERNATIVE DISPUTE RESOLUTION

AGREEMENT AND AMENDMENT TO ADMISSION AGREEMENT.” The agreement

provided, in relevant part:

                The Parties agree as follows:
                ....

                2. Waiver of Right to a Trial. By entering into this Agreement
                the Parties agree to resolve any dispute covered by this
                Agreement using mediation and arbitration, and give up their
                right to have the dispute decided in a court of law before a
                judge or jury.

                THE PARTIES UNDERSTAND THAT THE RULES OF
                PROCEDURE CONTAIN PROVISIONS FOR BOTH
                MEDIATION AND BINDING ARBITRATION. IF THE
                PARTIES ARE UNABLE TO REACH SETTLEMENT
                INFORMALLY, OR THROUGH MEDIATION, THE DISPUTE
                SHALL PROCEED TO BINDING ARBITRATION. BINDING
                ARBITRATION MEANS THAT THE PARTIES ARE WAIVING
                THEIR RIGHT TO A TRIAL, INCLUDING THEIR RIGHT TO
                A JURY TRIAL, THEIR RIGHT TO TRIAL BY A JUDGE AND
                THEIR RIGHT TO APPEAL THE DECISION OF THE
                ARBITRATOR(S).

                ....

                5. Pre-Request Procedures. Notwithstanding anything in this
                Agreement to the contrary, in connection with any claim for
                medical malpractice as defined in Florida Statutes Section
                766.106, or any similar successor law, or any claim or
                Request involving medical negligence, the Parties shall
                comply with the presuit investigation and presuit notification
                requirements under Chapter 766, Florida Statutes, or any
                similar successor laws (the "Presuit Statutes"), prior to filing a
                Request for ADR, unless the Parties agree to waive the


       1   Marianne appears individually and as guardian of her minor daughter, Skyla.


                                                2
       Relying on Crespo, we reached a similar result in A.K. v. Orlando Health, Inc., 186

So. 3d 626 (Fla. 5th DCA 2016). The A.K. opinion, in its entirety, reads as follows:

              A.K. and W.K., individually and on behalf of their son, N.K.,
              appeal from a nonfinal order compelling contractual
              arbitration. The arbitration provision in this case is
              substantially similar to the one we addressed in Crespo v.
              Hernandez, 151 So. 3d 495 (Fla. 5th DCA 2014), review
              granted, 171 So.3d 116 (Fla. 2015). As in Crespo, we hold
              that the arbitration agreement at issue here violates the public
              policy pronounced by the Legislature in the Medical
              Malpractice Act, chapter 766, Florida Statutes (2012), by
              failing to adopt the necessary statutory provisions.
              Accordingly, we reverse the order compelling arbitration and
              remand to the trial court for further proceedings. We also
              certify that this decision conflicts with Santiago v. Baker, 135
              So. 3d 569 (Fla. 2d DCA 2014).

Id. We conclude that, based upon our holdings in Crespo and A.K., the instant arbitration

agreement is unenforceable because it incorporates only some of the provisions of the

MMA and, thus, violates public policy.

       Here, in paragraph 5 of the parties' arbitration agreement, the Hospital

incorporated the MMA’s presuit requirements; therefore, under Crespo and A.K., the

Hospital was required to incorporate all of the MMA’s arbitration provisions in order for

the arbitration agreement to be valid. The Hospital failed to do so and, thus, the arbitration

agreement is invalid. See also Franks, 116 So. 3d at 1248 (“Because the Legislature

explicitly found that the MMA was necessary to lower the costs of medical care in this

State, we find that any contract that seeks to enjoy the benefits of the arbitration

provisions under the statutory scheme must necessarily adopt all of its provisions.”).

       We reject the Hospital's argument that, under the instant agreement's severability

clause, any invalid provisions can be severed, and, as a result, the instant matter can




                                              5
       The Klemishes argue that the trial court erred in ordering this matter to arbitration

because their arbitration agreement is void as against public policy since it incorporates

some, but not all, of the provisions of Florida's Medical Malpractice Act (MMA). We agree.

       “A trial court's decision regarding whether an arbitration agreement or provision is

void as against public policy presents ‘a pure question of law, subject to de novo review.’ "

Fi-Evergreen Woods, LLC v. Estate of Vrastil, 118 So. 3d 859, 862 (Fla. 5th DCA 2013)

(quoting Shotts v. OP Winter Haven, Inc., 86 So. 3d 456, 471 (Fla. 2011)).

       Our Supreme Court has held that public policy prohibits the enforcement of an

arbitration provision that incorporates some, but not all, of the MMA’s arbitration

provisions. Franks v. Bowers, 116 So. 3d 1240, 1248 (Fla. 2013). In Crespo v. Hernandez,

151 So. 3d 495 (Fla. 5th DCA 2014), review granted, 171 So. 3d 116 (Fla. 2015), we

applied Franks in holding that the arbitration agreement in that case violated public policy.

In its entirety, the opinion reads:

              The arbitration agreement at issue violates the public policy
              pronounced by the Legislature in the Medical Malpractice Act,
              chapter 766, Florida Statutes (2012), by failing to adopt the
              necessary statutory provisions. Franks v. Bowers, 116 So. 3d
              1240, 1248 (Fla. 2013) (“Because the Legislature explicitly
              found that the MMA was necessary to lower the costs of
              medical care in this State, we find that any contract that seeks
              to enjoy the benefits of the arbitration provisions under the
              statutory scheme must necessarily adopt all of its
              provisions.”). Therefore, we reverse the order rendered by the
              trial court compelling binding arbitration pursuant to the
              arbitration agreement under review. We certify conflict with
              the decision of the Second District Court of Appeal in Santiago
              v. Baker, 135 So. 3d 569 (Fla. 2d DCA 2014). We remand this
              case to the trial court for further proceedings.

Id. at 496.




                                             4
       Relying on Crespo, we reached a similar result in A.K. v. Orlando Health, Inc., 186

So. 3d 626 (Fla. 5th DCA 2016). The A.K. opinion, in its entirety, reads as follows:

              A.K. and W.K., individually and on behalf of their son, N.K.,
              appeal from a nonfinal order compelling contractual
              arbitration. The arbitration provision in this case is
              substantially similar to the one we addressed in Crespo v.
              Hernandez, 151 So. 3d 495 (Fla. 5th DCA 2014), review
              granted, 171 So.3d 116 (Fla. 2015). As in Crespo, we hold
              that the arbitration agreement at issue here violates the public
              policy pronounced by the Legislature in the Medical
              Malpractice Act, chapter 766, Florida Statutes (2012), by
              failing to adopt the necessary statutory provisions.
              Accordingly, we reverse the order compelling arbitration and
              remand to the trial court for further proceedings. We also
              certify that this decision conflicts with Santiago v. Baker, 135
              So. 3d 569 (Fla. 2d DCA 2014).

Id. We conclude that, based upon our holdings in Crespo and A.K., the instant arbitration

agreement is unenforceable because it incorporates only some of the provisions of the

MMA and, thus, violates public policy.

       Here, in paragraph 5 of the parties' arbitration agreement, the Hospital

incorporated the MMA’s presuit requirements; therefore, under Crespo and A.K., the

Hospital was required to incorporate all of the MMA’s arbitration provisions in order for

the arbitration agreement to be valid. The Hospital failed to do so and, thus, the arbitration

agreement is invalid. See also Franks, 116 So. 3d at 1248 (“Because the Legislature

explicitly found that the MMA was necessary to lower the costs of medical care in this

State, we find that any contract that seeks to enjoy the benefits of the arbitration

provisions under the statutory scheme must necessarily adopt all of its provisions.”).

       We reject the Hospital's argument that, under the instant agreement's severability

clause, any invalid provisions can be severed, and, as a result, the instant matter can




                                              5
proceed to arbitration.2 If the invalid provisions were severed, the trial court would be

required to rewrite the parties' arbitration agreement by inserting the MMA’s arbitration

provisions. Florida courts do not authorize such action. See Shotts, 86 So. 3d at 478

(“Based on the foregoing, we conclude that the limitations of remedies provision in the

present case that calls for the imposition of the AHLA rules is not severable from the

remainder of the agreement. Although the arbitration agreement in this case contains a

severability clause, the AHLA provision goes to the very essence of the agreement. If the

provision were to be severed, the trial court would be forced to rewrite the agreement and

to add an entirely new set of procedural rules and burdens and standards, a job that the

trial court is not tasked to do.”). See also Estate of Yetta Novosett v. Arc Vill. II, LLC, 189

So. 3d 895 (Fla. 5th DCA 2016); Estate of Reinshagen ex rel. Reinshagen v. WRYP ALF,

LLC, 190 So. 3d 224 (Fla. 5th DCA 2016).

         Accordingly, we reverse the trial court's arbitration order and remand for further

proceedings consistent with this opinion. As we did in Crespo and A.K., we certify conflict

with the decision of the Second District Court of Appeal in Santiago v. Baker, 135 So. 3d

569 (Fla. 2d DCA 2014).

         REVERSED AND REMANDED; CONFLICT CERTIFIED.


TORPY and EVANDER, JJ., concur.


2   The severability clause provides:

                If any provision of this Agreement is determined by an
                arbitrator or a court of competent jurisdiction to be invalid or
                unenforceable, in whole or in part, the remaining provisions,
                and partially invalid or unenforceable provisions, to the extent
                valid and enforceable, shall nevertheless be binding and valid
                and enforceable.



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