DIVESTON MERLIEN v. JM FAMILY ENTERPRISES, INC., SHERIDIAN 441, LLC and BENDLES RENTALS, LLC
19-2911
| Fla. Dist. Ct. App. | Jul 22, 2020Background
- Appellant Diveston Merlien was employed by AlliedBarton and assigned as a security guard at a JM Family Enterprises facility.
- Merlien slipped and fell on stairs at the JM facility and sued JM for premises negligence.
- At hire Merlien signed an AlliedBarton "Worker’s Compensation Disclaimer" waiving rights to sue any AlliedBarton customer (and its employees) for injuries covered by workers’ compensation.
- JM moved for summary judgment relying on that disclaimer; the trial court granted summary judgment for JM.
- Merlien appealed, arguing the waiver was ambiguous and, alternatively, unenforceable as contrary to Florida public policy; JM defended enforceability.
- The Fourth District affirmed, holding the disclaimer unambiguous, within public policy, and enforceable; a hearsay/authentication objection was not preserved below.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the disclaimer is ambiguous and therefore unenforceable | Merlien: waiver language is ambiguous and could be read as not waiving negligence claims | JM: waiver clearly names rights released, beneficiaries, and scope (injuries covered by workers' compensation) | Court: waiver is clear and unambiguous; enforceable |
| Whether the waiver violates Florida public policy (workers’ compensation scheme) | Merlien: waiver improperly forecloses a statutorily contemplated third-party negligence claim under §440.39 | JM: §440.39 is permissive; waiver merely channels recovery to workers’ compensation and doesn’t frustrate statutory purpose | Court: waiver does not contravene public policy; consistent with workers’ compensation scheme; enforceable |
| Whether JM’s proffered waiver was inadmissible hearsay / unauthenticated | Merlien: waiver affidavit was hearsay and unauthenticated so summary judgment should be denied | JM: authentication offered; plaintiff failed to timely object below | Court: plaintiff failed to preserve objection; authentication challenge not preserved |
Key Cases Cited
- Sanislo v. Give Kids the World, Inc., 157 So. 3d 256 (Fla. 2015) (unambiguous exculpatory clauses are enforceable unless they contravene public policy)
- Plancher v. UCF Athletics Ass’n, Inc., 121 So. 3d 1097 (Fla. 5th DCA 2013) (release found ambiguous where preamble suggested non-negligent supervision and did not expressly waive negligence claims)
- Brooks v. Paul, 219 So. 3d 886 (Fla. 4th DCA 2017) (release invalidated where language was qualified and thus ambiguous)
- Aguilera v. Inservices, Inc., 905 So. 2d 84 (Fla. 2005) (workers’ comp is a no-fault exchange limiting common-law negligence remedies in favor of prompt benefits)
- Bowman v. Sunoco, Inc., 65 A.3d 901 (Pa. 2013) (AlliedBarton-style waiver did not violate Pennsylvania public policy when employee remained covered by compensation scheme)
- Brown v. 1301 K Street Ltd. P’ship, 31 A.3d 902 (D.C. 2011) (AlliedBarton-style waiver upheld against public policy challenge)