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Florida Fifth DCA rules that defendant in assisted living facility negligence case waived its right to arbitration by attempting to engage in merits discovery after arbitration request

On May 24, 2019, in SHP IV Harbour Island, LLC v. Boylan, No. 5D18-423, an assisted living facility negligence case, the Florida Fifth affirmed a trial court’s ruling denying the defendant’s motion to compel arbitration.  The defendant had invoked its right to arbitration under the resident agreement with the facility and the trial court authorized the parties to conduct limited discovery regarding arbitration. However, in a subsequent deposition counsel for the assisted living facility asked numerous questions that went to the merits of the underlying case.  The trial court found this line of questioning extrinsic to the limited scope of discovery permitted by its order and “inconsistent with the right to arbitrate,” concluding that the defendant had thereby effectively waived its right to arbitrate.  The Fifth DCA noted that it has expressly held that engaging in merits discovery is inconsistent with an arbitration request and constitutes a waiver of the right to arbitration. See Lion Gables Realty Ltd. v. Randall Mech., Inc., 65 So. 3d 1098, 1101 (Fla. 5th DCA 2011) (“The law in Florida is clear that a party’s participation in merits discovery constitutes a waiver of arbitration.”); Olson Elec. Co. v. Winter Park Redev. Agency, 987 So. 2d 178, 179 (Fla. 5th DCA 2008) (holding that party waived its contractual right to seek arbitration when it propounded discovery directed to merits of opposing party’s claims). See also Green Tree Servicing, LLC v. McLeod, 15 So. 3d 682, 687 (Fla. 2d DCA 2009) (holding that party waived its claimed right to arbitration by participating in discovery related to merits of pending litigation, even where that discovery occurred after filing motion to compel arbitration; further observing that there is no requirement for proof of prejudice for effective waiver of arbitration right).