IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
MARY HINELY,
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appellant,
v.
CASE NO. 1D09-5009
FLORIDA MOTORCYCLE
TRAINING, INC., a Florida
corporation, and SCHOOL
DISTRICT OF ALACHUA
COUNTY,
Appellees.
_____________________________/
Opinion filed May 13, 2011.
An appeal from the Circuit Court for Alachua County.
Robert E. Roundtree, Jr., Judge.
Tracy L. Markham of Avolio & Hanlon, P.C., St. Augustine; Bard D. Rockenbach
and Nichole J. Segal of Burlington & Rockenbach, P.A., West Palm Beach, for
Appellant.
William T. Stone and Kansas R. Gooden of Boyd & Jenerette, P.A., Jacksonville,
for Appellees.
Corrected Opinion
VAN NORTWICK, J.
Mary Hinely appeals a final summary judgment in her action against Florida
Motorcycle Training, Inc. (“FMT”), seeking damages for injuries that she
sustained in an accident in the motorcycle training school operated by FMT. The
court granted summary judgment based upon FMT’s affirmative defense that the
exculpatory provisions contained within the registration application for FMT’s
motorcycle training school, which was completed and signed by Hinely, expressly
waived and released FMT from any liability arising from the motorcycle training
classes. Below and on appeal, Hinely has asserted that the exculpatory provisions
are unenforceable because they are unclear and ambiguous and, alternatively, are
void as against public policy. We affirm.
Hinely registered for a basic motorcycle riding course offered by FMT.
Prior to enrolling in the course, Hinely printed and signed a registration application
for the course from FMT’s internet website.
The application contained an
exculpatory provision under the heading: “Waiver of Release of Liability—Please
Read Carefully” (emphasis added).
The first paragraph of this exculpatory
provision states that the signer:
fully understand[s] and acknowledge[s] that: (a) risks and
dangers exist in my use of motorcycle equipment and my
participation in the Motorcycle Rider- Education Class
activities; (b) my participation in such activities and/or
use of such equipment may result in injury or illness
including, but not limited to bodily injury, disease,
strains, fractures, partial and/or total paralysis, death or
other ailments that could cause serious disability; (c)
these risks and dangers may be caused by the negligence
of the owners, employees, officers of agents of Florida
Motorcycle Training. . . . I hereby assume all risks and
dangers and all responsibilities for any losses and/or
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damages, whether caused in whole or in part by the
negligence or other conduct of the owners, agents,
officers, or employees of Florida Motorcycle Training,
Inc. or by another other person.
The second paragraph of the provision is a release and waiver of liability which
states:
I, on behalf of myself, my personal representatives and
my heirs hereby voluntarily agree to release, waive,
discharge, hold harmless, defend and indemnify Florida
Motorcycle Training. Inc. and its owners, agents,
officers, and employees from any and all claims, suits orcauses of action for bodily injury, property damage,
wrongful death, loss of services or- otherwise which may
arise out of my use of motorcycles and motorcycle
equipment or my participation in the Motorcycle Rider
Education Class activities. I specifically understand that
I am releasing, discharging and waiving any claims or
actions that I may have presently or in the future for the
negligent acts or other conduct by Florida Motorcycle
Training. Inc. and its owners, agents, officers or
employees.
Finally, the exculpatory provision includes the following paragraph in
capitalized and bold typeface immediately above Hinely’s signature:
I HAVE READ THE ABOVE WAIVER OR
RELEASE AND BY SIGNING IT AGREE IT IS MY
INTENTION TO EXEMPT AND RELIEVE
FLORIDA MOTORCYCLE TRAINING, INC.
FROM LIABILITY FOR PERSONAL LIABILITY,
PROPERTY DAMAGE OR WRONGFUL DEATH
CAUSED BY NEGLIGENCE OR ANY OTHER
CAUSE OF ACTION.
Subsequently, Hinely was involved in an accident while participating in the
FMT motorcycle class.
Hinely filed an action against FMT alleging several
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theories of negligence, including negligent operation of a motorcycle training
school, negligent selection of a course location and negligent supervision.1 As an
affirmative defense, FMT asserted that, by signing the registration application with
the exculpatory provision, Hinely expressly waived and released it from any
liability. In her reply to FMT’s answer and affirmative defenses, Hinely asserted
that the exculpatory provisions she signed are unenforceable because they are
unclear and ambiguous and that the exculpatory provisions are void as against
public policy.
FMT filed a motion for summary judgment arguing that the exculpatory
provision signed by Hinely shielded FMT from liability for the accident.
Following a hearing, the court granted FMT’s motion for final summary judgment.
Hinely’s motion for rehearing, arguing that the court failed to consider the public
policy implications of the release, was denied. This appeal followed.
A motion for summary judgment should be granted if the movant
conclusively demonstrates that there are no genuine issues of material fact. See
Cox v. CSX Intermodal, Inc., 732 So. 2d 1092, 1095-96 (Fla. 1st DCA 1999). As
we have stated, “[w]here the determination of the issues of a lawsuit depends upon
the construction of a written instrument and the legal effect to be drawn therefrom,
1
Alachua County was also named as a defendant, but the County did not join
FMT’s motion for summary judgment and thus was not a party to the final order
granting summary judgment and is not a party to this appeal.
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the question at issue is essentially one of law only and determinable by entry of
summary judgment.” Id. at 1096 (quoting Angell v. Don Jones Ins. Agency, Inc.,
620 So. 2d 1012, 1014 (Fla. 2d DCA 1993)). In such case, “an appellate court is
not restricted in its ability to reassess the meaning and effect of a written
instrument to reach a conclusion contrary to that of the trial court.” Cox, id.
(quoting Angell, 620 So. 2d at 1014). Because the issue before us is simply a
matter of law, our standard of review is de novo. AMEC Civil, LLC. v. State Dept.
of Transp. 41 So.3d 235, 238 (Fla. 1st DCA 2010).
Exculpatory clauses “are enforceable only where and to the extent that the
intention to be relieved was made clear and unequivocal in the contract, and the
wording must be so clear and understandable that an ordinary and knowledgeable
party will know what he is contracting away.” Southworth & McGill, P.A. v. S.
Bell Tel. & Tel. Co., 580 So. 2d 628, 634 (Fla. 1st DCA 1991). A provision in a
contract is ambiguous when it is of uncertain meaning, and thus may be fairly
understood in more ways than one. See Tatman v. Space Coast Kennel Club, Inc.,
27 So. 3d 108, 110 (Fla. 5th DCA 2009). As such, a contract must be construed in
accordance with the plain meaning of its terms. See Hand v. Grow Constr. Inc.,
983 So. 2d 684, 686 (Fla. 1st DCA 2008).
We disagree with Hinely’s contention that the exculpatory provision in
question is unclear and ambiguous. Although Hinely asserts that the typographical
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error in the provision’s heading (“Waiver of Release of Liability”) may lead a
person to understand the provision in more ways than one, it is obvious from a
reading of the exculpatory provision as a whole that the provision was plainly
intended to relieve FMT of liability for negligence associated with the motorcycle
training classes. Moreover, the headings or subheadings of a document do not
dictate the meaning of the entire agreement, especially where the literal language
of the heading is contrary to the agreement’s overall scheme. See, e.g., Moore v.
State Farm Mut. Auto. Ins. Co., 916 So. 2d 871, 875 (Fla. 2d DCA 2005) (“[T]he
intention of the parties must be determined from an examination of the entire
contract and not from separate phrases or paragraphs.”); see also Imation Corp. v.
Koninklijke Philips Electronics N.V., 586 F.3d 980, 987 n.3 (Fed. Cir. 2009)
(“This court is unwilling to resolve a pivotal issue of contract interpretation based
on the tense of section headings where doing so would conflict with the plain
reading of operative language elsewhere in the contract.”). Hinely asserts that
from the wording of the heading a person signing the document would conclude
that the provision waives any release of liability by FMT. We do not agree. FMT’s
intention to reduce its future liability, rather than facilitate such claims, is clearly
shown by the fact that the typographical error only occurs in the title and the error
is not repeated in the remainder of the document. See City Nat’l Bank v. Citibank,
N.A., 373 So. 2d 703,707 (Fla. 3d DCA 1979) (enforcing an exculpatory clause
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after concluding that although there were ambiguities the entirety of the
exculpatory clause was clear). The contract language in the present case clearly
shows FMT’s intent to avoid liability through the exculpatory clause.
Hinely also asserts that FMT’s exculpatory provision is void as against
public policy. An exculpatory clause is void as against public policy when the
following elements are established:
(1) it concerns a business of a type generally suitable for
public regulations; (2) the party seeking exculpation is
engaged in performing a service of great public
importance, which is often a matter of practical necessity
for some members of the public; (3) the party holds
himself out as willing to perform this service for any
member of the public who seeks it; (4) as a result of the
essential nature of the service and the economic setting of
the transaction, the party seeking exculpation possesses a
decisive advantage in bargaining strength; (5) in
exercising superior bargaining power, the party confronts
the public with a standardized adhesion contract of
exculpation; and (6) as a result of the transaction, the
person or property of the purchaser is placed under
control of the party to be exculpated.
Goeden v. CM III, Inc., 756 So. 2d 1105, 1106 (Fla. 3d DCA 2000) (quoting
Banfield v. Louis, 589 So.2d 441, 446 (Fla. 4th DCA 1991)).
Under these factors, based on the undisputed facts here, the exculpatory
clause at issue is not contrary to public policy. We find Goeden persuasive. In
Goeden, the Third District considered a case involving a city parking enforcement
specialist who, after signing a contract containing an exculpatory provision,
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enrolled in a motorcycle driving course and suffered injuries. 756 So. 2d at 1106.
On appeal, Goeden argued that the release was void as against public policy since
state law required enforcement specialists to possess a motorcycle operator’s
license, if they chose to utilize a “three wheel[ed] vehicle” while performing their
duties. Id. at 1105. Specialists could obtain the required license by enrolling in a
motorcycle riding course, although the record reflected that specialists could have
obtained a motorcycle operator’s license without enrolling in the class, since
Florida law at the time only made the course mandatory for applicants who were
under 21 years of age. Id. at 1106. Further, a specialist was not required to enroll
in such a course if the specialist chose to perform his or her duties on foot or chose
to transfer to another line of work. Id. at 1105. As the Goeden court explained:
[f]or members of the public who are twenty-one or older,
attendance at the motorcycle school is an available
option, but not a requirement, insofar as the driver’s
license law is concerned. That being so, we are not
persuaded that attendance at the school is a matter of
practical necessity or an essential service. . . .
Id. Accordingly, the Goeden court held that, since the officer was over 21 years of
age at the time she enrolled in the motorcycle school, the course was not
mandatory for her and that the release of liability was therefore valid. Id. at 110607.
Hinely has failed to satisfy several factors necessary to establish that this
exculpatory provision is void. First, there is no evidence that FMT engaged in
8
performing a service of great public importance by offering motorcycle training
courses. Second, as in Goeden, the course here was not an essential service or
practical necessity for Hinely since the applicable Florida law at the time of the
accident did not require an applicant to enroll in a motorcycle training class as a
condition of obtaining a license.2 Finally, Hinely also failed to demonstrate that
FMT exercised superior bargaining power. See, e.g., Petersen v. Sorensen, 118
Wash. App. 1027 (Wash. Ct. App. 2003) (holding that, although motorcycle
driving courses are favored as a mechanism for gaining proficiency, “this does not
create an unfair bargaining advantage because there was no need for [the plaintiff]
to take the course at all”).
AFFIRMED.
WOLF, and THOMAS, JJ., CONCUR.
2
The Goeden court suggested that, had the state mandated attendance at the
motorcycle training class as a prerequisite to obtaining a license, it would have
held otherwise and ruled that the release violated public policy. See Goeden at
1006. Because that issue is not before us, we do not address it. We note that the
applicable statute has been amended. Pursuant to section 43, chapter 2006-290,
Laws of Florida, the words “who is under 21 years of age” were stricken from
section 322.12(5)(a), Florida Statutes (2009), which outlines Florida motorcycle
license examination requirements. Thus, it appears that, under the current law, all
applicants for motorcycle driving licenses must complete a DMV-approved
motorcycle training course before obtaining a license.
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