In October 2023, a New York medical doctor sat down for a fateful meal with her husband and her mother-in-law at a Florida restaurant owned by the adjacent theme park.
[1] The doctor, who suffered from severe nut and dairy allergies, received numerous confirmations from restaurant staff that the food she ordered complied with her dietary restrictions.
[2] Before selecting the restaurant, she relied on statements made on the theme park company’s website that the restaurant offered allergen-free foods.
[3] After dinner, while perusing nearby shops by herself and away from her family, the doctor suffered a severe allergic reaction.
[4] She self-administered an epi-pen and was rushed to the hospital but died as a result of anaphylaxis due to elevated levels of dairy and nut in her system.
[5]
In February 2024, the doctor’s husband, on behalf of himself and as personal representative of the doctor’s estate, sued the company, alleging its negligence led to his wife’s wrongful death.[6] The company moved to compel arbitration in May 2024, based upon an arbitration clause contained within the husband’s November 2019 signup for a free trial of the company’s entertainment streaming service.[7] The arbitration clause contained in the Terms of Use required the husband to arbitrate “all disputes” against the company or its affiliates arising “in contract, tort, warranty, statute, regulation, or other legal or equitable basis”.[8] Furthermore, the husband purchased theme park tickets in September 2023 through the account he created when signing up for the company’s streaming service.[9] The company argued that the husband, through the purchase of the theme park tickets, again accepted an arbitration clause for himself and all persons for whom he purchased tickets, albeit this time the company contended the arbitration clause was found in additional Terms and Conditions.[10]
The doctor’s husband opposed the company’s motion, in part on the grounds that there was no nexus between the arbitration clause and his wife’s death, and in part on the grounds that enforcement of the arbitration clause would be unconscionable.[11] The company’s motion made headlines and led to negative public blowback due to its perceived lack of sympathy for the plaintiff.[12] In August 2024, the company withdrew its motion,[13] and, although it did not articulate reasons for the withdrawal of its motion, a high-ranking company spokesperson commented:
[W]e strive to put humanity above all other considerations. With such unique circumstances as the ones in this case, we believe this situation warrants a sensitive approach to expedite a resolution for the family who have experienced such a painful loss. As such, we’ve decided to waive our right to arbitration and have the matter proceed in court.[14]
Existing Florida case law states that “the determination of whether a particular claim must be submitted to arbitration necessarily depends on the existence of some nexus between the dispute and the contract containing the arbitration clause.”[15] More explicitly, a claim has a nexus to a contract and arises from the terms of the contract if it emanates from an inimitable duty created by the parties’ unique contractual relationship.[16] In contrast, a claim does not have a nexus to a contract if it pertains to the breach of a duty otherwise imposed by law or in recognition of public policy, such as a duty under the general common law owed not only to the contracting parties but also to third parties and the public. [17] Likewise, the mere fact that a dispute would not have arisen but for the existence of the contract and consequent relationship between the parties is insufficient by itself to transform a dispute into one arising out of or relating to the agreement that would subject the dispute to arbitration. [18]
Seifert v. United States Home Corp. is particularly instructive on the issue of whether a reasonable nexus exists.[19] There, the Florida Supreme Court held that a wrongful death claim against a house builder was not subject to an arbitration agreement contained in a purchase and sale contract.[20] The reasoning behind the decision is that the agreement did not indicate that the parties intended to include such common law tort claims within the scope of the contract or the arbitration provision.[21] The Court ordered that the decision of the underlying court be quashed, and that the case be remanded, effectively allowing the plaintiff to proceed with the wrongful death action in trial court, highlighting how crucial the wording of arbitration agreements is and their effect on the issue of contractual nexus.[22]
Relatedly, in Airbnb, Inc. v. Doe, the Florida Supreme Court Case makes it clear that a contract’s incorporation by reference of the American Association of Arbitration Rules that expressly delegate arbitrability determinations to an arbitrator, clearly evidences the parties’ intent to empower an arbitrator to resolve questions of arbitrability.[23] The case further states that courts must follow precedent and move cases that raise the issue of arbitrability to arbitration.[24] So, while there is a Florida Supreme Court case that requires the claim to have a nexus to the contract, a much more recent case holds that whether something is arbitrable is a question for the arbitrator if the contracting parties have incorporated their desire to delegate arbitrability determinations in their contract.
The company’s withdrawal of its motion to compel arbitration leaves uncertainty as to how broad arbitrable terms will be treated by the courts where there is a tenuous nexus between the claim and the contract. Had the company continued to oppose arbitration, it may have arguably invoked the arbitrability provision found in its contract which empowered an arbitrator with:
the exclusive authority to resolve any dispute relating to the interpretation, applicability or enforceability of these terms or the formation of this contract, including the arbitrability of any dispute and any claim that all or any part of this Subscriber Agreement are void or voidable.[25]
In sum, this situation is a reminder that when considering invoking arbitration in Florida, two things should be closely evaluated: 1) whether there is a reasonable nexus between the contract and the issue giving rise to the claim; and 2) whether the contract incorporates broad language that empowers an arbitrator to resolve questions of arbitrability.
[1] See Piccolo v. Great Irish Pubs Florida, Inc., et al., 2024 WL 3842742, Complaint at ¶¶ 7-10, 18, 20(Fla. Cir. Ct. 2024) (“Plaintiff’s Complaint”).
[2] Id. at ¶¶ 23-27
[3] Id. at ¶¶ 13-15, 63.
[4] Id. at ¶¶ 28-30.
[5] Id.
[6] See generally Plaintiff’s Complaint.
[7] See generally Piccolo v. Great Irish Pubs Florida, Inc., et al., 2024 WL 3874700, Defendant Walt Disney Parks and Resorts U.S., Inc.’s Motion to Compel Arbitration and Stay Case (Fla. Cir. Ct. 2024) (“Defendants’ Motion”).
[8] Id. at pp. 1-3.
[9] Id. at pp. 4-5.
[10] Id.
[11] Piccolo v. Great Irish Pubs Florida, Inc., et al., 2024 WL 3874695, Plaintiff’s Response in Opposition to Defendant, Walt Disney Parks and Resorts U.S., Inc.’s Motion to Compel Arbitration and Stay Case at p. 4 (Fla. Cir. Ct. 2024) (“Plaintiff’s Opposition”).
[12] Claire Fahy, Disney Backs Down From Effort to Use Disney+ Agreement to Block Lawsuit, The New York Times (August 20, 2024), https://www.nytimes.com/2024/08/20/nyregion/disney-arbitration-allergy-death-lawsuit.html; Lauren Edmonds, How Disney created a PR nightmare with its response to wrongful-death lawsuit, Business Insider (September 2, 2024), https://www.businessinsider.com/disney-wrongful-death-lawsuit-legal-argument-pr-nightmare-2024-8; Ryan Smith, Disney Responds to Wrongful Death Lawsuit Fury—‘Merely Defending Ourselves’, Newsweek (August 15, 2024), https://www.newsweek.com/disney-world-wrongful-death-lawsuit-kanokporn-tangsuan-jeffrey-piccolo-1939591.
[13] Piccolo v. Great Irish Pubs Florida, Inc., et al., 2024 WL 3889994, Notice of Withdrawing Motion to Compel Arbitration and Stay Case (Fla. Cir. Ct. 2024).
[14] Jesse Zanger, Lisa Rozner, Disney changes course on wrongful death lawsuit, says it will not seek arbitration, CBS News (August 21, 2024), https://www.cbsnews.com/newyork/news/disney-wrongful-death-lawsuit-arbitration/.
[15] Seifert v. United States Home Corp., 750 So. 2d 633, 638 (Fla. 1999).
[16] Jackson v. Shakespeare Found., Inc., 108 So. 3d 587, 593 (Fla. 2013).
[17] Id.
[18] Seifert, 750 So. 2d at 638.
[19] See id. generally.
[20] Id. at 640.
[21] Id. at 641.
[22] Id. at 642-643.
[23] Airbnb, Inc. v. Doe, 336 So. 3d 698, 704 (Fla. 2022).
[24] Id.
[25] See Plaintiff’s Opposition at Exhibit D.
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