         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


ESTATE OF ROBERT F. REINSHAGEN,
BY AND THROUGH DONALD E.
REINSHAGEN, EXECUTOR DE SON TORT,

              Appellant,

v.                                                       Case No. 5D15-4194

WRYP ALF, LLC, LEXINGTON PARK 466,
LLC AND REBECCA S. KOPPENHAFER,

              Appellees.

____________________________            ____/

Opinion filed April 29, 2016

Non-Final Appeal from the Circuit Court
for Lake County,
Heidi Davis, Judge.

Isaac R. Ruiz-Carus, Megan L. Gisclar
and, Donna K. Hanes, of Wilkes &
McHugh, P.A., Tampa, for Appellant.

Michael R. D'Lugo, of Wicker, Smith,
O'Hara, McCoy & Ford, P.A., Orlando,
for Appellees.


PER CURIAM.

       The Estate of Robert F. Reinshagen (“Estate”), which was the plaintiff below,

appeals the trial court’s order compelling arbitration. Mr. Reinshagen was a former

resident of the Appellees’ assisted living facility. Estate filed the instant suit, alleging
that its decedent sustained injuries resulting in his death due to Appellees’ negligence

and violations of decedent’s statutory rights under chapter 429, Florida Statutes.

Appellees successfully compelled arbitration pursuant to an arbitration clause in the

residence agreement between Appellees and the decedent.

      We reverse the order compelling arbitration based upon our recent opinion in

Estate of Novosett v. Arc Villages II, LLC, 41 Fla. L. Weekly D652 (Fla. 5th DCA Mar.

11, 2016).   In that case, the trial court held that the provisions in the arbitration

agreement between the nursing home owner/operators and the estate of a deceased

resident of the nursing home, which placed a cap on noneconomic damages and

precluded the availability of punitive damages, were void as against public policy. 41

Fla. L. Weekly at D653. However, the court concluded that arbitration of the parties’

dispute was still required pursuant to the parties’ agreement because the agreement

contained a severability clause that permitted the court to sever any unenforceable

provisions of the contract without invalidating the entire agreement. Id. Citing to Gessa

v. Manor Care of Florida, 86 So. 3d 484 (Fla. 2011),1 we reversed, concluding that

because the offending clauses went to the very essence of the agreement, the entire

agreement was invalidated, notwithstanding the severability clause. Id.

      Here, as in Estate of Novosett, the agreement between the parties placed a cap

on the recovery of noneconomic damages and precluded the recovery of punitive




      1 In Gessa, the court held that limitation of liability provisions in the arbitration
agreement included in nursing home’s admissions documents violated public policy and
were not severable because they constituted the financial heart of the arbitration
agreement. 86 So. 3d at 490–91.



                                            2
damages.2 Accordingly, consistent with Estate of Novosett, the order compelling

arbitration is reversed and this cause is remanded for further proceedings. As we did in

Estate of Novosett, we certify the following question to the Florida Supreme Court as

one of great public importance:

             DOES THE COURT’S HOLDING IN GESSA V. MANOR
             CARE OF FLORIDA, 86 So. 3d 484 (Fla. 2011), CONTROL
             WHERE, AS HERE, THE CONTRACT CONTAINS A
             SEVERABILITY CLAUSE?

      REVERSED and REMANDED; QUESTION CERTIFIED.

PALMER, TORPY, and LAMBERT, JJ., concur.




      2  The trial judge found that these provisions, as well as provisions in the
agreement which waived the right to recover attorney’s fees and costs, waived the right
to appeal the arbitrator’s decision, and limited the taking of depositions, were
unenforceable, but compelled arbitration due to the existence of the severability clauses
in the parties’ agreement. In defense of the trial judge, she did not have the benefit of
our opinion in Estate of Novosett when she issued the order on appeal.


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