John Terwilleger, Can A Professional Limit Liability Contractually Under Florida Law?

65 Fla. L. Rev. 1351 (2013) |

Florida law is currently unclear on the issue of whether a professional may rely upon a limitation of liability clause in a professional services contract. Limitation of liability clauses are common in business contracts, especially in construction, a field that includes many professionals such as engineers and architects. While Florida has historically enforced limitation of liability clauses in professional services contracts, recent cases have cast doubt on whether the clauses are enforceable. If the Florida Supreme Court establishes that professionals cannot rely upon these clauses, it will be taking a position contrary to the majority of states, including New York, California, and Texas, all of which enforce limitation of liability clauses with varying degrees of restriction. This Note argues that Florida should not prohibit professionals from using limitation of liability clauses. These clauses do not violate public policy when, as already required by Florida law, the clauses are stated clearly, ensuring that both parties to the contract are aware of their existence. Permitting professionals to continue to rely upon limitation of liability clauses honors the contracting parties’ freedom of contract. Additionally, limitation of liability clauses provide an efficient method for parties to allocate risk.

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