severability clause in Florida

2026See Fletcher, 415 So. 3d at 162 n.22 (“The constitutional application of a statute to a particular set of facts is another whether the taint of an illegal provision has infected the entire enactment, requiring the whole unit to fail.” (citation, brackets, and internal quotation marks omitted)); Ray v. Mortham, 742 So. 2d 1276, 1281 (Fla. 1999) (adopting the severability analysis that the Florida Supreme Court has applied to challenges to legislative enactments to challenges to state constitutional amendments and determining that “a severability analysis [was] required” and “necessary” where ce

2017“The severability analysis answers the question of whether ‘the taint of an illegal provision has infected the entire enactment, requiring the whole unit to fail.’ ” Ray v. Mortham, 742 So. 2d 1276, 1280 (Fla. 1999) (quoting Schmitt v. State, 590 So. 2d 404, 414 (Fla. 1991)).

2017“The severability analysis answers the question of whether ‘the taint of an illegal provision has infected the entire enactment, requiring the whole unit to fail.’ ” Ray v. Mortham, 742 So. 2d 1276, 1280 (Fla. 1999) (quoting Schmitt v. State, 590 So. 2d 404, 414 (Fla. 1991)).

2017“The severability analysis answers the question of whether ‘the taint of an illegal provision has infected the entire enactment, requiring the whole unit to fail.’” Ray v. Mortham, 742 So.2d 1276, 1280 (Fla. 1999) (quoting Schmitt v. State, 590 So.2d 404, 414 (Fla. 1991)).

2018Schneider v. FS Tenant Pool III Tr., 95 So. 3d 296, 301 (Fla. 4th DCA 2012) (holding in part that Gessa did not apply because, unlike in Gessa, there was a severability clause in the arbitration agreement that was on review on appeal); see also VoiceStream Wireless Corp. v. U.S. Commc’ns, Inc., 912 So. 2d 34, 38 (Fla. 4th DCA 2005) (“Despite the presence of these two [illegal] provisions in the dealer 5 agreement, we conclude that where the contract contains a severability clause, their presence does not require a holding that the arbitration agreement is similarly unenforceable.”); Fonte, 903

2018See Betts v. FastFunding The Co., Inc., 60 So. 3d 1079, 1082 (Fla. 5th DCA 2011) (citing Fonte v. AT&T Wireless Servs., Inc., 903 So. 2d 1019, 1024 (Fla. 4th DCA 2005)); VoiceStream Wireless Corp. v. U.S. Commc’ns, Inc., 912 So. 2d 34, 37 (Fla. 4th DCA 2005) (footnote omitted) (“[W]here the [ ] agreement includes a severability clause, the presence of certain unenforceable provisions in the contract does not require a finding that the arbitration agreement is unenforceable.”).

2011Thus, a party’s challenge to another provision of the contract, or to the contract as a whole, does not prevent a court from enforcing a specific agreement to arbitrate. “[A]s a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract.” Buckeye, 546 U.S., at 445 , 126 S.Ct. 1204 ; see also id., at 447 , 126 S.Ct. 1204 (the severability rule is based on § 2).

2011Thus, a party’s challenge to another provision of the contract, or to the contract as a whole, does not prevent a court from enforcing a specific agreement to arbitrate. “[A]s a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract.” Buckeye, 546 U.S., at 445 , 126 S.Ct. 1204 ; see also id., at 447 , 126 S.Ct. 1204 (the severability rule is based on § 2).

2021“When a portion of a statute or ordinance is declared invalid the remaining portions thereof which are severable ordinarily should be recognized as valid, and it is the duty of the court to preserve their validity whether or not a severability clause was included.” Dade Cnty. v. Keyes, 141 So. 2d 819, 821 (Fla. 3d DCA 1962).

2008See Dade County v. Keyes, 141 So.2d 819, 821 (Fla. 3d DCA 1962) ("When a portion of a statute or ordinance is declared invalid the remaining portions thereof which are severable ordinarily should be recognized as valid, and it is the duty of the court to preserye their validity whether or not a severability clause was included."); see also Ray v. Mortham, 742 So.2d 1276, 1280 (Fla.1999) ("Severability is a judicial doctrine recognizing the obligation of the judiciary to uphold the constitutionality of legislative enactments where it is possible to strike only the unconstitutional portions.").

2021“The fact that the offending provision is not self- contained in a separate section of the statute does not prohibit the court from applying the severability rule.” Small v. Sun Oil Co., 222 So. 2d 196, 199 (Fla. 1969).

1994See also Small v. Sun Oil Co., 222 So.2d 196, 199 (Fla.1969) (finding that courts may preserve the constitutionality of an act by eliminating an invalid portion under the severability rule).

2018Schneider v. FS Tenant Pool III Tr., 95 So. 3d 296, 301 (Fla. 4th DCA 2012) (holding in part that Gessa did not apply because, unlike in Gessa, there was a severability clause in the arbitration agreement that was on review on appeal); see also VoiceStream Wireless Corp. v. U.S. Commc’ns, Inc., 912 So. 2d 34, 38 (Fla. 4th DCA 2005) (“Despite the presence of these two [illegal] provisions in the dealer 5 agreement, we conclude that where the contract contains a severability clause, their presence does not require a holding that the arbitration agreement is similarly unenforceable.”); Fonte, 903

2018See Betts v. FastFunding The Co., Inc., 60 So. 3d 1079, 1082 (Fla. 5th DCA 2011) (citing Fonte v. AT&T Wireless Servs., Inc., 903 So. 2d 1019, 1024 (Fla. 4th DCA 2005)); VoiceStream Wireless Corp. v. U.S. Commc’ns, Inc., 912 So. 2d 34, 37 (Fla. 4th DCA 2005) (footnote omitted) (“[W]here the [ ] agreement includes a severability clause, the presence of certain unenforceable provisions in the contract does not require a finding that the arbitration agreement is unenforceable.”).

2016It is clear from both Shotts and Gessa that the existence of a severability clause is not determinative of whether an offending provision may be severed from the agreement and that the “controlling issue is whether an offending clause or clauses go to ‘the very essence of the agreement.’” Estate of Yetta Novosett v. Arc Villages II, LLC, 189 So.3d 895, 896 (Fla. 5th DCA 2016) (applying Shotts and Gessa and holding that limitation-of-liability provision capping non-economic damages and precluding punitive damages violated public policy and could not be severed, despite the existence of a severa

2011See Hanson, 953 So.2d 773 (rejecting severability where contract contained a severability clause and a provision that adopted the AHLA rules); Lacey, 918 So.2d 333 (rejecting severability where contract contained no severability clause and contained provisions that capped noneconomic damages at $250,000 and waived punitive damages).

2000The State argues that this Court's decision in Moreau v. Lewis, 648 So.2d 124, 128 (Fla. 1995), along with the severability clause set forth in section 39 of chapter 95-184, supports the application of severability in this case.

2000This Court then found that the offending section of the Implementing Bill was properly severable from the remaining portions of the bill, see id. at 127-28 , noting the severability clause contained in the Implementing Bill and applying the following test set forth by this Court in Presbyterian Homes v. Wood, 297 So.2d 556, 559 (Fla.1974): An unconstitutional portion of a general law may be deleted and the remainder allowed to stand if the unconstitutional provision can be logically separated from the remaining valid provisions, that is, if the legislative purpose expressed in the valid provis

2002Instruction of Orange County, 137 So.2d 828, 830 (Fla.1962)(holding that “the unconstitutionality of a portion of a statute will not necessarily condemn the entire act.”); Dade County v. Keyes, 141 So.2d 819, 821 (Fla. 3d DCA 1962)(holding that “[w]hen a portion of a statute or ordinance is declared invalid the remaining portions therefore which are severable ordinarily should be recognized as valid, and it is the duty of the court to preserve their validity whether or not a severability clause was included”).

1983On or before February 15 of each year, the Division of Pari-mutuel Wagering shall issue an annual license authorizing the permitholder to conduct a racing meet during the period granted by the Florida Pari-mutuel Commission. [5] Section 8 of Ch. 23728, Laws of Florida (1947) provides: "If any part of this Act is declared unconstitutional, it shall not affect any remaining part hereof." [6] The severability test delineated in Cramp, 137 So.2d at 830 provides: When a part of a statute is declared unconstitutional the remainder of the act will be permitted to stand provided: (1) the unconstitutio

2018Northport alternatively asserts that the arbitration agreement contains a severability clause providing that in the event any provision of the agreement is held to be unenforceable for any reason, the remainder of 4 the agreement “shall remain in full force and effect and shall be enforceable in accordance with its terms.” A “contract is severable where . . . with the illegal portion eliminated, there still remains of the contract valid legal promises on one side which are wholly supported by valid legal promises on the other.” Shotts, 86 So. 3d at 475 (quoting Local No. 234 of United Ass'n of

2012Part of the Court’s severability analysis is the notion that the parties would not have entered into a contract that did not contain the provision sought to be severed, a provision that went “to the very essence of the agreement.” Id.

2005Cf. State v. Champe, 373 So.2d 874, 880 (Fla.1978) (regarding severability of a portion of a Florida state legislative provision).

1981Applying the severability test of Cramp v. Board of Public Instruction of Orange County, 137 So.2d 828 (Fla. 1962), see also State v. Champe, 373 So.2d 874 (Fla. 1979); State v. Lee, 356 So.2d 276 (Fla. 1978), we find that the invalid clause, that is, "or any substance foreign to the natural horse or dog," can be separated from the remaining valid provisions; the legislative purpose expressed in the valid provisions can be accomplished independently of the invalid clause; the invalid clause is separable in substance from the valid clause so as to permit the conclusion that the Legislature woul

2017Estate of Novosett v. Arc Villages II, LLC, 189 So.3d 895, 896 (Fla. 5th DCA 2016).

2016It is clear from both Shotts and Gessa that the existence of a severability clause is not determinative of whether an offending provision may be severed from the agreement and that the “controlling issue is whether an offending clause or clauses go to ‘the very essence of the agreement.’” Estate of Yetta Novosett v. Arc Villages II, LLC, 189 So.3d 895, 896 (Fla. 5th DCA 2016) (applying Shotts and Gessa and holding that limitation-of-liability provision capping non-economic damages and precluding punitive damages violated public policy and could not be severed, despite the existence of a severa

2011Jackson, 130 S.Ct. at 2778 (footnote omitted).

2011See Jackson, 130 S.Ct. at 2778 ("[A]s a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract.”) (quoting Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445 , 126 S.Ct. 1204 , 163 L.Ed.2d 1038 (2006)); see also Buckeye, 546 U.S. at 447 , 126 S.Ct. 1204 ("[T]he rule of severability ... ultimately arises out of § 2...."). .

2008See Moreau v. Lewis, 648 So.2d 124, 128 (Fla. 1995) (quoting Presbyterian Homes v. Wood, 297 So.2d 556, 559 (Fla.1974)).

2000This Court then found that the offending section of the Implementing Bill was properly severable from the remaining portions of the bill, see id. at 127-28 , noting the severability clause contained in the Implementing Bill and applying the following test set forth by this Court in Presbyterian Homes v. Wood, 297 So.2d 556, 559 (Fla.1974): An unconstitutional portion of a general law may be deleted and the remainder allowed to stand if the unconstitutional provision can be logically separated from the remaining valid provisions, that is, if the legislative purpose expressed in the valid provis

2005In Smith v. Department of Insurance, 507 So.2d 1080, 1089 (Fla.1987), we recognized that courts should be mindful of the Legislature's intent in determining whether an unconstitutional provision can be severed from the remainder of a statute.

1999Cf. Moreau v. Lewis, 648 So.2d 124, 127 (Fla. 1995); Smith v. Department of Ins., 507 So.2d at 1080 .

2000Stated simply: "The severability of a statutory provision is determined by its relation to the overall legislative intent of the statute of which it is a part, and whether the statute, less the invalid provisions, can still accomplish this intent." Martinez v. Scanlan, 582 So.2d 1167, 1173 (Fla. 1991) (quoting Eastern Air Lines, Inc. v. Dep't of Revenue, 455 So.2d 311, 317 (Fla.1984)).

1999Stated simply: "The severability of a statutory provision is determined by its relation to the overall legislative intent of the statute of which it is a part, and whether the statute, less the invalid provisions, can still accomplish this intent." Martinez v. Scanlan, 582 So.2d 1167, 1173 (Fla.1991) (quoting Eastern Air Lines, Inc. v. Department of Revenue, 455 So.2d 311, 317 (Fla.1984)).

2000Stated simply: "The severability of a statutory provision is determined by its relation to the overall legislative intent of the statute of which it is a part, and whether the statute, less the invalid provisions, can still accomplish this intent." Martinez v. Scanlan, 582 So.2d 1167, 1173 (Fla. 1991) (quoting Eastern Air Lines, Inc. v. Dep't of Revenue, 455 So.2d 311, 317 (Fla.1984)).

1999Stated simply: "The severability of a statutory provision is determined by its relation to the overall legislative intent of the statute of which it is a part, and whether the statute, less the invalid provisions, can still accomplish this intent." Martinez v. Scanlan, 582 So.2d 1167, 1173 (Fla.1991) (quoting Eastern Air Lines, Inc. v. Department of Revenue, 455 So.2d 311, 317 (Fla.1984)).

1993Barndollar v. Sunset Realty Corp., 379 So.2d 1278, 1281 (Fla. 1980).

1993Barndollar v. Sunset Realty Corp., 379 So.2d 1278,1281 (Fla.1980).

2021The policy contained an exclusionary clause which precluded coverage for bodily injury “which is expected or intended by any insured” and a severability clause which stated that “[t]his insurance applies separately to each insured.” Id. at 1055–56.

2021On appeal, the insurance carrier argued that the term “any insured” in the exclusionary clause “exclude[d] all persons insured under the policy for underlying intentional acts notwithstanding the language of the severability clause.” Id. at 1056 .

2018Although there was a severability clause, the supreme court decided it could not sever a provision providing for AHLA arbitration procedures because “[i]f the provision were to be severed, the trial court would be forced to rewrite the [arbitration] agreement and to add an entirely new set of procedural rules and burdens and standards, a job that the trial court is not tasked to do.” Shotts, 86 So. 3d at 478 .

2018Northport alternatively asserts that the arbitration agreement contains a severability clause providing that in the event any provision of the agreement is held to be unenforceable for any reason, the remainder of 4 the agreement “shall remain in full force and effect and shall be enforceable in accordance with its terms.” A “contract is severable where . . . with the illegal portion eliminated, there still remains of the contract valid legal promises on one side which are wholly supported by valid legal promises on the other.” Shotts, 86 So. 3d at 475 (quoting Local No. 234 of United Ass'n of

2008See Ray v. Mortham, 742 So.2d 1276, 1280 (Fla.1999) ("Severability is a judicial doctrine recognizing the obligation of the judiciary to uphold the constitutionality of legislative enactments where it is possible to strike only the unconstitutional portions." (citing State v. Calhoun County, 126 Fla. 376 , 170 So. 883, 886 (1936))).

2008See Ray v. Mortham, 742 So.2d 1276, 1280 (Fla.1999) ("Severability is a judicial doctrine recognizing the obligation of the judiciary to uphold the constitutionality of legislative enactments where it is possible to strike only the unconstitutional portions." (citing State v. Calhoun County, 126 Fla. 376 , 170 So. 883, 886 (1936))).

2011See Hanson, 953 So.2d 773 (rejecting severability where contract contained a severability clause and a provision that adopted the AHLA rules); Lacey, 918 So.2d 333 (rejecting severability where contract contained no severability clause and contained provisions that capped noneconomic damages at $250,000 and waived punitive damages).

2011See Place at Vero Beach, Inc. v. Hanson, 953 So.2d 773 (Fla. 4th DCA 2007) (rejecting severability where agreement had a severability clause and a provision adopting AHLA rules); Lacey v. Healthcare & Retirement Corp. of Am., 918 So.2d 333 (Fla. 4th DCA 2005) (rejecting severability where agreement capped noneconomic damages at $250,000, precluded punitive damages, and had no severability clause).

2015Courts must be mindful of legislative intent in determining whether a provision may be severed, and “[i]f the legislative intent ... cannot be fulfilled absent the unconstitutional provision, the statute as a whole must be declared invalid.” Martin, 916 So.2d at 773 . .

2013See Fla. Dep’t of State, Div. of Elections v. Martin, 916 So.2d 763, 773 (Fla.2005)(“ ‘Severability is a judicial doctrine recognizing the obligation of the judiciary to uphold the constitutionality of legislative enactments where it is possible to strike only the unconstitutional portions.’ The doctrine of severability is ‘derived from the respect of the judiciary for the separation of powers, and is designed to show great deference to the legislative prerogative to enact laws.” ’)(internal citations and quotations omitted).

2011Specifically, in Anders v. Hometown Mortgage Services, Inc., 346 F.3d 1024 (11th Cir.2003), the court held that where the parties’ agreement contains remedial limitations, but also contains a severability clause that permits any invalid provisions to be excised, the question of the validity of the remedial limitations is for the arbitrator to decide.

2005Specifically, in Anders v. Hometown Mortgage Services, Inc., 346 F.3d 1024 (11th Cir.2003), the court held that where the parties' agreement contains remedial limitations, but also contains a severability clause that permits any invalid provisions to be excised, the question of the validity of the remedial limitations is for the arbitrator to decide.

2018Schneider v. FS Tenant Pool III Tr., 95 So. 3d 296, 301 (Fla. 4th DCA 2012) (holding in part that Gessa did not apply because, unlike in Gessa, there was a severability clause in the arbitration agreement that was on review on appeal); see also VoiceStream Wireless Corp. v. U.S. Commc’ns, Inc., 912 So. 2d 34, 38 (Fla. 4th DCA 2005) (“Despite the presence of these two [illegal] provisions in the dealer 5 agreement, we conclude that where the contract contains a severability clause, their presence does not require a holding that the arbitration agreement is similarly unenforceable.”); Fonte, 903

2016Even though the arbitration agreement contained such a clause, the court in Estate of Deresh went on to consider whether the offending provision went to the heart of the agreement. 95 So.3d 296 , 301 (Fla. 4th DCA 2012).

2011See Fletcher, 952 So.2d 1225 (rejecting severability where contract, contained a severability clause and provisions that capped noneco-nomic damages at $250,000 and waived punitive damages); Stokes, 935 So.2d 1242 (rejecting severability where contract contained no severability clause and contained provisions that capped noneconomic damages at $250,000 and waived punitive damages).

2011P’ship, 952 So.2d 1225 (Fla. 5th DCA 2007) (rejecting severability where contract capped noneconomic damages at $250,000, precluded punitive damages, and had a severability clause); SA-PG-Ocala, LLC v. Stokes, 935 So.2d 1242 (Fla. 5th DCA 2006) (rejecting severability where agreement contained provisions that capped noneconomic damages at $250,000 and precluded punitive damages, and had no severability clause). .

2021Rather, “[t]he key is whether the overall legislative intent is still accomplished without the invalid provision.” Searcy, Denney, Scarola, Barnhart & Shipley v. State, 209 So. 3d 1181, 1196 (Fla. 2017).