A Florida state appeals court has reversed a trial court and ruled that when the Amateur Athletic Union of the United States, Inc. (AAU) responded to the initial complaint of the parents of a son, who alleged that the AAU was negligent because it didn’t follow through on certain safety measures that would have protected their son for a head injury, that it waived the right to an existing arbitration clause.
The underlying action arises from a head injury, which the minor son of William and Joanne Stankos, suffered during a taekwondo competition organized by AAU. The Stankoses’ initial complaint alleged several causes of action against the AAU, including claims for negligence, “misrepresentation and concealment,” loss of filial consortium, and injunctive relief. The AAU filed an answer and an amended answer to the initial complaint. The AAU also engaged in extensive discovery pertaining to the merits of the case. More than a year after the initial complaint was filed, the Stankoses filed an amended complaint. In the amended complaint, the Stankoses added two additional causes of action, namely, a claim alleging that the AAU violated section 943.0438, Florida Statutes (2013), and a claim under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA).
The count alleging violations of section 943.0438 appears to be directed at augmenting the Stankoses’ negligence count based on a theory of negligence per se for the AAU’s alleged failure to comply with the provisions in that statute requiring youth sports organizations to adopt certain safety measures. See § 943.0438(2)(f) & (g), Fla. Stat.
Additionally, the FDUTPA count alleged in relevant part that “[p]ermitting children, such as Jaden, to compete in ‘light head contact’ competitions without first complying with Florida state law to enforce rules and bylaws intended to protect youth athletes from potentially life-long injuries related to concussions and head injuries, is obviously deceptive, grossly unfair, and beyond conscionable.”
After the amended complaint was filed, the AAU moved to compel arbitration based on an arbitration clause contained within the AAU handbook. The Stankoses agreed to be bound by this clause when they applied for an AAU membership. In the motion, the AAU argued that, although it may have waived arbitration by answering the initial complaint, its right to seek arbitration was revived when the Stankoses filed their amended complaint, which the AAU maintains expanded the scope of the litigation. The trial court granted the motion and entered an order compelling arbitration.
“There is no doubt that AAU waived its right to compel arbitration by answering the Stankoses’ initial complaint and engaging in discovery directed to the merits of the case,” wrote the court, citing Doctors Assocs., Inc. v. Thomas, 898 So. 2d 159, 162 (Fla. 4th DCA 2005); Marine Envtl. Partners, Inc. v. Johnson, 863 So. 2d 423, 427 (Fla. 4th DCA 2003).
“With respect to the effects of the amended complaint, no Florida case holds that the right to compel arbitration is revived by the filing of an amended complaint. To the contrary, at least one district court of appeal has concluded that ‘[t]he fact that the plaintiffs filed an amended complaint does nothing to revive [the defendant’s] right to arbitration.’ Morrell v. Wayne Frier Mfrd. Home Ctr., 834 So. 2d 395, 398 (Fla. 5th DCA 2003).
“AAU argues, based on Eden Owners Ass’n, Inc. v. Eden III, Inc., 840 So. 2d 419 (Fla. 1st DCA 2003), that an amended complaint can revive a defendant’s previously waived right to compel arbitration. AAU’s reliance on Eden is misplaced. In Eden, the plaintiff did not raise an arbitrable issue until it filed its second amended complaint. Id. at 420. As the plaintiff’s earlier complaints did not raise any arbitrable issues, the defendant did not waive arbitration by answering those complaints. Id. In this case, unlike Eden, the Stankoses’ initial complaint raised arbitrable issues.
“AAU also argues, based on federal case law, that an amended complaint can revive a defendant’s previously waived right to compel arbitration if the amended complaint unexpectedly alters the nature and scope of the litigation. See, e.g., Krinsk v. SunTrust Banks, Inc., 654 F. 3d 1194 (11th Cir. 2011).”
However, the court noted, that in the instant case “the amended complaint does not alter the scope or theory of the underlying litigation in an unforeseeable way. The amended complaint does not involve issues significantly separate and distinct from those raised in the original complaint. The new claims are still directed toward the minor child’s injury and AAU’s safety practices. The Stankoses’ claim under section 943.0438 merely provides a possible basis for a finding of negligence per se based on the same core set of facts raised in the initial pleading. Similarly, the FDUTPA claim, assuming it is even viable, does not unexpectedly alter the scope or theory of the litigation. The original complaint already asserted a similar claim for misrepresentation, and already sought injunctive relief that would be applied to other taekwondo participants at AAU events. Finally, the inclusion of a request for attorney’s fees in the FDUTPA claim cannot be deemed to have materially altered the scope or theory of the litigation.”
Thus, the court reversed the trial court’s order compelling arbitration.
Willian Stankos and Joanne Stankos v. Amateur Athletic Union of The United States, INC.; Ct. App. Fla., 4th Dist.; No. 4D17-3361, 2018 Fla. App. LEXIS 13026; 43 Fla. L. Weekly D 2117; 9/12/18
Attorneys of Record: (for appellants) David J. Sales and Daniel R. Hoffman of David J. Sales, P.A., Jupiter, and Jack Scarola and David P. Vitale, Jr. of Searcy Denney Scarola Barnhart & Shipley, P.A., West Palm Beach. (for appellee) Elizabeth K. Russo of Russo Appellate Firm, P.A., Miami, and Rafferty E. Taylor and Martin D. Stern of Hinshaw & Culbertson, Fort Lauderdale.
