Uncertainty in the law is sometimes unavoidable. But sophisticated parties want predictability, and when the enforceability of commonly used provisions in commercial contracts is uncertain, practitioners need to know. The U.S. Court of Appeals for the Eleventh Circuit recently offered a useful reminder to practitioners that the enforceability of broad exculpatory clauses under Florida law remains an open question, and prodded the Florida Supreme Court for an answer.
In Pier 1 Cruise Experts v. Revelex, 929 F.3d 1334, 1337 (11th Cir. 2019), the Eleventh Circuit certified a question to the Florida Supreme Court seeking guidance on whether an “unusually broad exculpatory clause” could be enforced. The parties in Revelex had negotiated an exculpatory clause releasing liability for “damages regardless of kind or type (whether in contract, tort (including negligence), or otherwise),” and providing that Revelex’s total cumulative liability could not exceed $100. The Eleventh Circuit wants to know whether language that broad is enforceable and, if not, whether the presence of such a broad exculpatory clause renders the entire contract illusory or simply means that some but not all claims are barred. As the court observed, “Florida law arguably supports any of three different answers to the question, but none of the decisions that have been cited to us (or that we have found ourselves) is quite on point.”
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