DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
LENNAR HOMES, LLC,
Appellant,
v.
MATTHEW WILKINSKY,
Appellee.
No. 4D22-1239
[January 4, 2023]
Appeal of a nonfinal order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Barbara Anne McCarthy, Judge; L.T.
Case No. CACE21-016619.
David M. Gersten and Eric R. Thompson of Gordon Rees Scully
Mansukhani, Miami, and Kelly Ann Luther and Giselle G. Manseur of
Kasowitz Benson Torres LLP, Miami, for appellant.
William G. Wolk of Eaton & Wolk, PL, Miami, for appellee.
PER CURIAM.
Lennar Homes, LLC, appeals a nonfinal order denying its motion to
compel arbitration. The trial court denied the motion based on Dewees v.
Johnson,
329 So. 3d 765 (Fla. 4th DCA 2021).
Unlike Dewees, the arbitration provisions in this case expressly and
unambiguously extend to personal injuries suffered by plaintiff within the
residential community where the home he purchased was located.
Because the arbitration provisions are clear, the “significant relationship”
test used in Dewees does not apply.
Id. at 770. Thus, we reverse.
Background
Lennar developed the Cascata at MiraLago residential community (the
“Community”). In 2018, Lennar sold a home in the Community to plaintiff
Matthew Wilkinsky.
The arbitration clause in the Purchase and Sale Agreement states:
The parties to this Agreement specifically agree that . . .
any Dispute (as hereinafter defined) shall first be submitted to
mediation and, if not settled during mediation, shall thereafter
be submitted to binding arbitration . . . and not by or in a court
of law or equity. “Disputes” (whether contract, warranty, tort,
statutory or otherwise), shall include, but are not limited to,
any and all controversies, disputes or claims (1) arising under,
or related to, this Agreement, the Property, the Community or
any dealings between Buyer and Seller; (2) arising by virtue of
any representations, promises or warranties alleged to have
been made by Seller or Seller’s representative; (3) relating to
personal injury or property damage alleged to have been
sustained by Buyer, Buyer’s children or other occupants of
the Property, or in the Community . . . .
(emphasis added). The deed contains an arbitration clause that similarly
includes personal injuries sustained “in the Community.”
In 2020, Wilkinsky was riding his bicycle on a road in the Community
when he fell and suffered injuries. He sued Lennar for negligence, alleging
that his injuries were caused by a raised manhole cover that was
improperly paved by Lennar or its agents.
Lennar filed a motion to dismiss and to compel arbitration. Wilkinsky
responded that, in Dewees, this Court held a similar arbitration clause in
a home sale contract was “overbroad and inapplicable to personal injuries
because there was no contractual nexus between the injury claim” and the
home purchase contract.
The trial court denied Lennar’s motion to compel based on Dewees.
This appeal follows.
Analysis
Our review of the purely legal issues is de novo. Hayslip v. U.S. Home
Corp.,
276 So. 3d 109, 113 (Fla. 2d DCA 2019). Public policy favors
arbitration, and “[a]ny doubt about the scope of the arbitration clause
should be resolved in favor of arbitration.” Fed. Vending, Inc. v. Steak &
Ale of Fla., Inc.,
687 So. 2d 1366, 1368 (Fla. 4th DCA 1997).
This case turns on the meaning of Dewees. We find that the trial court
erred in ruling that Dewees restricted the scope of the unambiguous
clause in this case, which expressly includes personal injury claims “in
2
the Community.” In this case, the plain language of the arbitration
agreement controls.
In Seifert v. U.S. Home Corp.,
750 So. 2d 633 (Fla. 1999), the Florida
Supreme Court recognized that the parties’ intent controls and that an
arbitration clause can include tort claims. “The intent of the parties to a
contract, as manifested in the plain language of the arbitration provision
and contract itself, determines whether a dispute is subject to arbitration.”
Jackson v. Shakespeare Found., Inc.,
108 So. 3d 587, 593 (Fla. 2013).
The “significant relationship” or “contractual nexus” test applied in
Dewees is used to determine the scope of a broad arbitration clause, such
as one that applies to claims “relating to” a contract:
Two basic types of arbitration provisions have emerged: (1)
provisions with language and application narrow in scope,
and (2) provisions with language and application broad in
scope. An arbitration provision that is considered to be
narrow in scope typically requires arbitration for claims or
controversies “arising out of” the subject contract. This type
of provision limits arbitration to those claims that have a
direct relationship to a contract’s terms and provisions. In
contrast, an arbitration provision that is considered to be
broad in scope typically requires arbitration for claims or
controversies “arising out of or relating to” the subject
contract. The addition of the words “relating to” broadens the
scope of an arbitration provision to include those claims that
are described as having a “significant relationship” to the
contract—regardless of whether the claim is founded in tort or
contract law.
Jackson,
108 So. 3d at 593 (emphasis added) (citations omitted).
The significant relationship or contractual nexus test applies only
where the arbitration agreement uses broad language that does not
expressly include the claim at issue.
“[W]hen the language of the contract is clear and unambiguous, the
contract must be interpreted and enforced in accordance with its plain
meaning.” Lake City Fire & Rescue Ass’n, Local 2288 v. City of Lake City,
240 So. 3d 128, 130 (Fla. 1st DCA 2018) (citation omitted).
The trial court mistakenly believed that, pursuant to Dewees, the scope
of an arbitration agreement is always limited to claims with a contractual
3
nexus to the agreement. But Dewees required interpretation of a broad
arbitration clause that did not expressly apply to personal injury claims in
the community.
In Dewees, the plaintiff purchased a home in a residential community
and brought a negligence claim against the developer for injuries suffered
in a bicycle accident allegedly caused by the developer failing to properly
maintain the roadways. 329 So. 3d at 767. The parties’ purchase
agreement contained a broad arbitration clause. 1
Importantly, the clause in Dewees included personal injury claims, but
did not expressly provide that it applied to personal injury claims “in the
community.” Id. at 770.
Because the arbitration language in Dewees was broad but ambiguous
as to whether it included the tort claim at issue, this Court applied the
“significant relationship” test. Id. (“Here, because the Purchase Contract
includes an arbitration provision containing broad arbitration language,
the claims subject to arbitration are not only those that arise out of the
Purchase Contract but also those with a significant relationship to the
Purchase Contract.”).
1 The arbitration clause in Dewees provided:
This contract provides that all post-closing claims, disputes, and
controversies (hereinafter collectively “claims”) between purchaser
and seller will be resolved by binding arbitration . . . .
[P]urchaser and seller hereby mutually, knowingly and voluntarily
agree that . . . any and all claims by or between purchaser and seller
which occur post-closing, even those based upon a theory not
recognized at the time this agreement is executed, shall be
submitted to binding arbitration for resolution, such claims
include, without limitation, claims that arise from or in connection
with, or relate to: . . . (C) the home, its design, or its construction;
(D) the real property on which the home is situated . . . . This
provision shall apply to all post-closing claims . . . regardless of the
legal theory alleged (including, without limitation, breach of
contract, tort, violation of statute, code, rule or regulation, or
breach of any implied covenant or duty), the type of injury alleged
(including, without limitation, monetary, property damage,
personal injury . . . .
329 So. 3d at 767-68.
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Unlike the arbitration provision in Dewees, here, the arbitration
provisions are unambiguous and expressly extend to personal injuries “in
the Community.” The plain language of the agreement controls. 2
Accordingly, we reverse and remand with directions to grant the
motion to dismiss and to compel arbitration.
Reversed and remanded.
GROSS, CIKLIN and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
2 Wilkinsky also contends that he did not agree to arbitrate the tort claims
because the agreement provides that arbitration is pursuant to the American
Arbitration Association (“AAA”) Home Construction Arbitration Rules or the AAA’s
Construction Industry Arbitration Rules. This argument has no merit. Personal
injury claims are not excluded by these rules. Additionally, we have previously
enforced arbitration clauses as to tort claims under these rules. See, e.g., Engle
Homes, Inc. v. Jones,
870 So. 2d 908, 909, 911 (Fla. 4th DCA 2004).
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