exculpatory clause can be selectively applied either to bar the negligence claim or the breach of contract clearly and the answer that question is in the distinction between the ib case look to me like the florida courts look at this and on a claim by claim basis and it might be that the scope of tory cause would be invalid in so far as it would mean no liability for breach of contract but but that it might be valid and so far as the negligence claim is concerned and that the district court really failed to understand florida law on that point him are missing something honor what happened in plants that was a two to one decision from the fourth district in the one nine hundred seventy s and in that case the facts were involved a public utility that had a monopoly that was seeking to enforce  atory clause against a private customer and subsequent case law has confined i v plants to those facts in that case they were concerned with the unequal bargaining power between the public utility and  the consumer in other cases they have said that only applies when you're dealing with a public utility if you're dealing with a private contract between parties of equal bargaining power such as this case that's when the line of cases that we cite in our brief is a political so it's not one other difference between this case and i v plants you read the exculpatory clause here and not only is it very broad but it refers to contract claim which seems i don't know like just going completely rewrite the thing right and that's what we're saying the court was not at liberty to do i mean the case law dealing with private contracts between private parties  holds them accountable to the language that the select in their contract now the flip side to me anyway for at least from an equitable perspective is that can it really be the law that the party who insists on this clause sort of heads i win tails you lose because either the court enforces the clause in which case you're off scot free or the court says wolf this clause is so broad invalidates the entire contract and now good news rival lex there is no contract on which you can be sued now here sadly for you there are misrepresentation claims that remain even if the contract is wiped off the books but that wouldn't necessarily be the case right i mean you could have a straight innocent breach contract claim with a similar exculpatory clause a method in the contract that would just sort of i don't know heads i win tails you lose for them for you damned if you do damned if you don't for the other side well it's not heads i win til you lose because  the evidence showed that these were negotiated in agreed to in exchange for lower prices revellers said they would not be able to offer their services at the prices they were offered but for these and in fact they were designated as essential terms of the of the contract and that's another with an unjust enrichment claim that's the that's the alternative it's not as if they don't have recourse they could go back to trial and the odd thing is you usually can't have an unjust enrichment claim when you have a written contract right so that's why if you're invalidate the contract and say it's void ab initio then you don't have the written contract and you're left with unjust enrichment so it's not as if they don't have recourse and they did plead a fraud claim here but they later dropped that claim so that's not an issue that's the only case law that in florida that allows the court to selectively apply a and it's a tory clause of this nature is that they say you can apply it to the negligence you have to apply to the negligence and the breach of contract but you're not allowed to apply it to an intentional toward or a fraud plain and we dispute that but they drop their fraud claim in this case so if you look at it's been a variety of different types of cases where the courts have upheld this is gym membership cases race tracks security alarm systems they have upheld these types of provisions and in all those different types of scenarios in florida when you're dealing with private parties it's a different story plants when you're dealing with a public utility so then is there even a case out there that you think where the scope atory clause would be so broad that it would in fact render a contract a loser like what at the end of the day do you promise to do we promise to provide our services at lower prices to create this website in our this company is a company has been around for twenty years it has relationships with major corporations throughout the world this is not a fly by night entity by any means but what is the enforcement of the contract against you look like well the enforcement is we're not allowed to defraud you and that's that's not a contract claim that exists independent because right what is the contract was enforcement of a contract do there is no i agree there is no breach of contract claim under the terms record didn't grant summary judgment on on either of those counts they went what happened was the court divided the contract in half and said i'm invalidating the service agreement but i'm allowing plaintiffs to proceed to trial solely on the scope of work and our and the breach of contract claim went to went to trial and to verdict came back on on both of those counts in favor of the plaintiff and our position is that if there were a court order of both parties agreed that even there their principal testified at deposition that the scope of work and the service agreement are two long of the same contract between the parties they refer to each other and they're the only two contracts between the parties and they have provisions that incorporate each other and they were negotiated and entered into in the same timeframe so one of the florida law they're treated does the same contract so if the search scope of work is governed by the service agreement and service agreement is void as a loser  exculpatory clauses are in force then it would apply to both both documents because they're all part of the same contract some sort of back to my mate you know maybe it's an equitable problem but great news for your client you know sort of the broader what we argued here we argued you should enforce the contract as written pursuant to the long line of cases in florida that have done that you know this is not the first case that this type of thing has happened and we've cited a variety of different scenarios where the courts have upheld these types of  ry clauses this is not a unique scenario and i think those are the cases that are controlling here that is not the cut government contract public cases even even the court in its order and summary judgment was saying to florida case law dealing with government contracts that's a different scenario and what we're dealing with here this is a private contract and the key binding case law in florida has held that these types of provisions are in forcible r c so  if i'm right though and the district court should have or reviewed this on a claim by claim basis or might be that the district court should not have allowed the negligence claim to go correct neither either t breach of contract nor the negligence claim should have gone to the jury yes you have like flip sides right so if it's claimed by claim the district court should not they should have enforced it with respect to negligence but not they would have effectively under i v sort of severed it out and said it's not applicable to the to the breach of contract claim so contract claim survives negligence claim goes forward the flipside is no no no you don't go claim my claim and you now it renders the entire contract a lose the contract goes poof there is no contract claim but the negligence claim survives external to the contract correct but you can go only go claim by claim pursuant to what the language of the contract says no no no i know i'm just saying that i think there are so you have like mirror images of one another if you go claim by claim you get sort of this scenario and if you go sort of not claim my claim you get the scenario you know either the contract claim survives the negligence claim doesn't or the negligence claim survives the contract i don't i don't agree with that  assessment because the way the case law is written you have claims of cases from all different florida courts that have said if the contract says no negligence no breach of contract no gross negligence whatever is in there in this case we even had no lost profits they will enforce that as it's written provided that it's equal bargaining power let's hear from europe as to rogers and granting the rule fifty motion did say that he believed that there was sufficient or excuse me i believe he said that in the context when he was dealing with the witness that he believed that there was sufficient evidence here for a jury to make a determination about lost profits and so if you look at the standard under florida on the w w mechanical case there's two elements that we need to establish first that there was a cause of lost profits here and second that there is some standard by which to determine it now we don't need to make that determination of the amount with exactitude a reasonable approximation under florida law is enough and so in this particular case there is undisputed evidence at trial of causation both revel x witnesses testified that th software would have increased profits as well as pure one cause experts financial manager miss perez testified that it would increase the profit i mean increase the number of crew sales and therefore increase the number of profits for the experience in ten years in the cruise industry and selling cruises in brazil they understand the brazilian cruise market they understand how to sell them through various distribution channels in fact they have three hundred sub agency distribution channels that they use the online apologize there's an objection to that testimony that you were referring to would have to be expert testimony she was a lay witness the district court sustained it and that's what yes your honor it and and we're not arguing an abuse of discretion in that ruling in her limiting her further testimony our argument is based upon the testimony that was in the record sufficient we believe that there was enough here remember the florida standard is not exactitude it's a reasonable approximation all you need to do is provide a standard or a yardstick and we believe her testimony provided that especially in the context of the florida case law that says that the only uncertainty that prevents the recovery of lost profits going to the jury is uncertainty as to causation and there's no uncertainty as t universally enforced in florida in fact if you look at the cases that the that are cited on the other side their cabin to certain restricted areas such as alarm service contracts and things like that in a commercial setting like this in fact what the florida law says is that you we construe these clauses against the party that's trying to enforce them that these these types of exculpatory clauses are generally disfavored under the law but there are certain limit and exceptions for certain types of negligence claims usually that they allow them to go forward now and addition if you look at the cases that are cited on the other side a lot of them involve some situation where there's still some kind of contractual remedy that's provided by the exculpatory clause usually it's like a limited nature of the damages you know like limited to the cost or something like that so those types of contracts are not necessarily illusory they're not the type of contract that we specifically have here there is no case that involved this type i mean this is steroids i've never seen anything kind of this this serious before that prevents any type of recovery and under hornbook florida law these types of these types of clauses will render will render that on situation render these a loser ie render the entire agreement illusory it's our position that in that circumstance you sever the provision you do not then take and invalidate the entire contract but i believe those asus gust earlier we don't believe in this particular case that makes immaterial difference because either way either we get there on our breach of contract or we get there on our negligent misrepresentation whether you sever the axle to tory provision or whether you invalidate the whole contract we think we still get our jury question and we stick the verdict is still affirmed and we also think we can get a new trial on lost profits if your honour's agree with that now with respect to your question on your honor about the negotiation of that particular provision i i  not recall anything specific that that provision of the contract was negotiated between the parties and we have to remember that my clients are from brazil my clients english is not their first language so they testified kind of what they understood some of these provisions to mean which you know might not have been the same as somebody who are english was their first language but we don't believe that the relative bargaining positions of the parties is necessarily the dispositive issue here  didn't specify the type of caught the type of claim whether in contract or tort it was ambiguous as to those types points and so therefore the court in i v and applying that clause then said well we're going to construe this clause and say ok well maybe it would apply to bar negligence claim but it will not apply to bar a breach of contract claim that is not the clause in this case because in this case an ambiguously unclearly bars both contract and tort claims and so to do it so we could and we do analyze it on a claim by claim basis and we look at that clause and say does it bar preacher contract claim yes there's a bar by it's clear terms a negligence claim yes so under both of those circumstances it bars the claims it bars all claims that renders the the renders the contract illusory if you're going to go down that road and what that's made me think of is like the doctrine of constitutional avoidance or constitutional ballot where where we've got a statute that might plausibly be read two ways if one of the two ways renders the statute unconstitutional then we'll choose the other reading but if the statute is clear as a bell and we have to just completely rewrite the thing in order to save it from unconscious  invalidity and we decide look we can't do that and it seems like an i v you've got like a constitutional avoidance analogy possible open to the court here i just don't see one absent just completely rewriting the thing i agree with your honor's interpretation and we also agree that you cannot rewrite this provision right and so in essence was what my counseling other side and what rebel x is trying to do is that will say ok well you know you can rewrite this provision to excise out the bar on contract claims and excise out the bar on direct damages and therefore you would miraculously have an enforceable exculpatory clause under florida law well respectfully that's that's not how you can too you're not allowed to rewrite the contract language like that especially when the contract is supposed to effectuate the intent of the parties and as counsel said it's very clear the intent of the parties was not to allow direct damages on breach of contract claims so you cannot in any way sure perform rewrite this so i do have a question for you though when you started to go down this road and i don't mean to derail you but is there a boomerang effect here as to your attorney's fees claim because your attorney's fees claim sort of depends on the existence of a contract in the first instance and so if your argument and roman one basically is the thing was so broad that it rendered the entire contract a loser there was never a contract to begin with and how is your argument and roman two or three or four or whatever but in any event we get attorney's fees for some of the contract  because under the florida supreme court case which everybody agrees that you know that the david versus van vander nord case which is the florida supreme court case that dictates the outcome here it says that if the contract once existed even if it's later declared unenforceable and that's where we have a situation where they are trying to and they were trying to enforce this contract all the way through the rule fifty motions you know i mean i get it i guess it's a little philosophical but i mean isn't it a loser in this i mean i guess the root word i'm not a latin scholar but is something illusion there was an illusion of a contract but it never in fact existed this is something that runs to contract formation it's like so fundamental that the contract never in fact existed and then you might have other things that you know like that render the contract voidable or something but this is kind of like a steroid all kind of argument that renders the whole thing a loser as if it never happened right well your honor i would disagree i don't think that this is a situation where because it's a loser it's as if you know the party there was never an acceptance of an offer here there was an acceptance of an offer and the parties operated under that agreement for a period of time and it only became a loser e once there was a breach and the remedy was denied right so all of the parties operate as if they were in agreement the entire time and so this is not a situation where you know the cases that have said that they're denying the recovery was when there was never an acceptance of the contract right or the i just disclaim and i guess i'm trying to get my head around this are you saying in effect that there might have been an offer an acceptance of something but there was no consideration to the contract i mean it's been a long time for me and first your contract but i mean wouldn't that be a sort of a formation issue that says like it never contract to begin with because there was no consideration the party still operated as if there was a contract the entire time and it's only later declared on enforceable and you have a situation some of these may your attorneys the provision has  argument has a more fundamental problem as i understand it what florida law really requires with respect to attorneys fees is reciprocity that is you know if one side can get attorneys fees for a certain kind of  contract enforcement then it goes both ways as to that issue but when i look at the fee provision here it's about attorneys fees for a suit for delinquent  fees and that's not what this enforcement action was about it seems to me there's no need for reciprocity in there and then there's no even if we assume that there is some kind of survivability of the attorneys for the provision for this otherwise i so let's look at what the contract says the fear provision in four point three says that my client will have to pay attorney's fees incurred by rebel x quote in collecting delinquent fees ok that's what the provision says ok but so if we look to if we look to what happened in the pleadings and trial rebel acts all the way through the rule fifty motion a trial was trying to collect on what they believed to be were delinquent fees through their affirmative defense number eight on set off through an affirmative defense they were try to reduce our recovery by collecting on the unpaid fees that's what that's what they've argued that's what they argued in their defense and more to the point your honor they believe that it justified i case tells us that that kind of rep reza prosody requirement applies to a defense like said oh we cited a number of cases yet we've cited a number of cases to it's the district court in our brief that stood for the proposition that or defense posture when you're trying to do that it doesn't matter as long as you are trying to enforce the structural provisions secondly is that your honor they rebel x believe that there affirmative defense number eight was sufficient to trigger the attorney's fees provision because immediately after pleading the set off affirmative defense the next paragraph says that we are entitled to our attorneys fees under four point three of the contract the next thing that we need to look at your honor is the reciprocity statute under florida law which is fifty seven point one five subsection seven the operative language in there says you know if they're trying right if the contract contains a provisional outing attorneys fees to a party when he or she is required to take any action to enforce the contract and that's what they were trying to do to enforce the contract to collect on the delinquent attorney's fees as a set off here's the operative language your honor the court may also allow reasonable attorneys fees to the other party when that party prevails in any action whether as plaintiff or defendant with respect to the contract and this is certainly an action with respect to the contract in which we were the prevailing party so therefore under fifty seven one hundred five subsection seven clear florida law as well as the way this case was tried all the way through the rule fifty case we are certainly entitled to our attorneys fees under the contractual fee provision where we're you know regardless of whether the court ultimately determines the contract is on enforceable because it's  so as we see it the court really has three options here first the court can enforce the contract as written in which case the a cook exculpatory clause as everyone agrees ours both the negligence and the breach of contract going to final loser is defined by the law in reference to consideration it is an essential element of the contract furthermore under under the expressed terms of this contract the parties have stated that this expose clause is an essential term and when well no because the language of this provision specifically references negligence and we've cited to a variety of cases i just wan we've cited two cases and there's a long line of florida cases dealing with the private sector there's it's not just the burglar alarm cases which i think are very analogous to this have very similar provision which barred negligence  reach of contract this is and this is actually another fourth district case more recent than than the i v plants cases the illyrian sun case the court found that it barred negligence and gross negligence in the continental versus honeywell case from the third district barred breach of contract negligence there's a construction contract case which barred negligent misrepresentation we cited that one in our brief that was the windstar case and the second dca they were race tracks  storage as lennox concha it's music parks it's not just specific scenarios it's if it's a private contract these types of provisions will be if if if we agree though with your opponent that it rendered the contract illusory then the negligence well the reason is this this provision was designated as an essential term what will that no contract will but the case law says that if the court does not infer what force an essential term of the contract or otherwise terms that contract is void then that an essential term of the contract has failed so there is no contract and now you have a negligence claim well i'd have to look go back and look at that and some more detail but it is the reason why the negligence claim would survive the contract goes poof that wasn't something that they argued in the seek out what the right answer sure but if there's they haven't sought a sign that as an error in this case they haven't determined that the court erred by determining that the contract was a loser e so that's not something that they buy to mean they they want i mean they want the opposite right i mean that they got their negligence claim they went to trial and the negligence claim got some fees right there good so i mean you're the one who needs to go who wants to make the negligence claim go away right look that's correct and negligence claim there's no attorney's provision so that would definitely different different a different issue right only and so yes i think our position is that they were awarded damages on the negligence right i merrily our argument is this the heart of our argument is that if you follow a florida case law that's dealing with these types of contracts they don't declare them illusory they don't void the contract what they do is they say that if it is not a public utility said situation you  contract between private parties it's inforced as written and that's what we are asking the court to do in force this this was a contract is entered into the plaintiff's testified that he read the contract he understood the contract he had the opportunity to consult with an attorney before signing the contract and he voluntarily entered into this contract and in exchange revellers offered services for a lower price all right so we were you know you agreed with my characterization i think of a loser in essence running to consideration so what exactly is the i guess i'll call it the enforceable consideration that your client provided in entering into the contract we offered our services at the lower prices and if you and if you said there's a case that we cited  if you failed to do it then what will that be the case that we cite in our brief has allowed this type of provision to stand it's not it's not that i mean they made a decision based on our reputation and that if we if if the contract fails or it doesn't work out they no longer the remedy is to no longer do business with us and that's that's been allowed under florida law i'm not this is not the first case i'm not advocating for a change in the law and advocating for the court to apply florida case law that is deal dealt with these types of contract i think we're what we're doing right now is debating the merits of the long line of cases that have upheld these types of provisions and i don't think we're really at liberty to do that we have to follow what florida law says about this and that's what we're asking the court to do so can i ask a question i think you started out your reply by saying we have three options one is to enforce the contract is written one is to declare that it's illusory and what would be the consequence of that certainly for the breach of contract count that would be out they would have a claim of unjust enrichment and i know the court is put on the table this is for this is really the first time this is has come up is whether the negligence count itself could survive i don't know the answer to that question per se without having going back and reviewed it but our position would be that you would simply uphold you have to reverse the final judgment because these two contracts are part of the same agreement between the parties and then that would be a new trial an unjust enrichment and then the third option is if you follow the if you plants which our position is that's not a political here because you can't selectively apply and it's open to a clause in a contract between private parties then it would be the same result because this is an essential term of the bargain they would not have entered into this agreement without it and therefore the remit is void it would be a new trial and just a rigid so can i ask you one last question i may be missing something but you've now said several times sort of this is the first i've heard of the contract being declared a loser e and the negligence claim surviving right i thought that's exactly what happened the district court said the contract contract claim and i thought you also had a negligence claim my understanding is that that survived because the scope of work survived ok ok ok we have your case if you like