News & Resources

Exculpatory Clauses Alive and Well In Florida

March 1, 2015 | Category: Subro News and Cases

In a 4-3 decision, the Florida Supreme Court reversed decades-old precedent and made it easier for defendants to avoid liability based upon exculpatory contract language.

It has long been the law in Florida that contractual exculpatory clauses are not effective to bar negligence actions unless the clause contains express language encompassing the defendant's own negligence. This past week, however, the Florida Supreme Court changed Florida law by eliminating the requirement that the clause contain such express language to be effective. In Sanislo v. Give Kids the World, Inc., 2015 WL 569119, 40 Fla. L. Wkly S79, Case No. SC12-2409 (Fla. Feb. 12, 2015), the Court affirmed a Fifth District Court of Appeal decision which held an exculpatory clause to be effective to bar a negligence action even in the absence of language referring to the defendant's own negligence. In making it easier for defendants to escape liability based upon exculpatory contractual language, the Florida Supreme Court reversed all four of Florida's other District Courts of Appeal.

Despite reversing four decades of precedent, the majority claimed its decision "is not intended to render general language in a release of liability per se effective to bar negligence actions."  Instead, what must be now determined, on a "case-by-case basis," is whether the exculpatory clause/release clearly and unambiguously indicates the defendant's intent to be relieved for its own acts of negligence. The case-by-case analysis will apply to all kinds of contracts we address every day in subrogation.  From construction contracts to lease agreements, from service contracts to rental agreements, subrogation insurers whose insureds executed contracts with waivers or limitation of liability clauses, will now be facing this newly empowered affirmative defense.

The full text of the Florida Supreme Court Opinion can be found here: