WILLIAM WIENER AND ELIZABETH S. WIENER

v.

TAYLOR MORRISON SERVICES, INC., F/K/A MORRISON HOMES, INC., D/B/A MORRISON HOMES

BILBREY, J.

William and Elizabeth Wiener appeal a non-final order which stays their civil complaint and refers the cause to arbitration. As arbitration is not required pursuant to the specific terms of the applicable agreement between the parties, we reverse.

The Wieners filed a complaint seeking damages from Taylor Morrison Services, Inc., which constructed the Wieners’ residence and sold it to them. Two warranties were provided by Taylor Morrison for the Wieners’ residence. The warranties were a two-year “blanket” warranty, which is not applicable here, as well as a CORRECTED PAGE: pg 2 CORRECTED CITATION IS UNDERLINED IN RED MAILED: February 26, 2020 BY: KS ten-year “structural” warranty. In their complaint, the Wieners alleged that the construction of their residence was in violation of various provisions of the Florida Building Code, sections 553.70-553.898, Florida Statutes, particularly with regard to the installation of the stucco. They did not allege a claim under either warranty.

Upon receipt of the complaint, Taylor Morrison moved to stay the proceedings in circuit court and to compel arbitration. After a non-evidentiary hearing, the trial court granted that motion finding that the issues raised by the Wieners were arbitrable under the structural warranty agreement and that Taylor Morrison has not waived its right to require arbitration. An order compelling arbitration is subject to de novo review. See Mora v. Abraham Chevrolet-Tampa, Inc., 913 So. 2d 32 (Fla. 2d DCA 2005).

The structural warranty granted by Taylor Morrison has numerous limitations. The structural warranty states:

6. This warranty does not apply to non-load-bearing elements which are deemed NOT to have the potential for a Major Structural Defect:

a) non-load-bearing partitions and walls; b) wall tile or paper, etc.; c) plaster, laths, or drywall; d) flooring and sub-flooring material; e) brick, stucco, stone or veneer

* * *

8. This is an express limited warranty offered by Morrison Homes.

ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED. No one can add to or vary the terms of this warranty, orally or in writing.

(Emphasis added). Importantly, the structural warranty defines “major structural defect” as follows:

A Major Structural Defect is defined as a defect which causes actual physical damage to the load-bearing elements of your home (described below), which damage is caused by the failure of such load-bearing elements and is sufficiently severe such that your home becomes unsafe or inhabitable [sic].

This warranty covers the catastrophic failure of load-bearing elements your home. All parts of the definition of a Major Structural Defect must be present in order for coverage to arise. The ONLY covered load-bearing elements are:

• foundation systems and footings; • beams; • girders; • lintels; • columns; • walls and partitions; • floor systems; and • roof framing systems.

(Emphasis added).

Paragraph F of the structural warranty section provides that “[a]ny controversy or claim or complaint arising out of or relating to the Ten-Year Limited Warranty shall be resolved by final and binding arbitration in accordance with the rules and procedures of the American Arbitration Association.” Taylor Morrison argued below that this provision required arbitration of the Wieners’ claims. It offered no other agreement between the parties in support for its demand for arbitration. The trial judge agreed with Taylor Morrision and ordered arbitration based on the arbitration clause in the structural warranty.

Arbitration provisions are contractual in nature, and therefore, construction of such provisions and the contracts in which they appear is a matter of contract interpretation. See Seifert v. U.S. Home Corp., 750 So. 2d 633 (Fla. 1999). “The intent of the parties to a contract, as manifested in the plain language of the arbitration provision and contract itself, determines whether a dispute is subject to arbitration.” Jackson v. Shakespeare Found., Inc., 108 So. 3d 587, 593 (Fla. 2013) (citing Seifert, 750 So. 2d at 636).

There is no allegation in the Wieners’ complaint that “actual physical damage” has been caused by “load-bearing elements” of such severity that the residence is unsafe or uninhabitable. As noted, a claim is covered by the structural warranty only if the claim pertains to a “defect which causes actual physical damage to the load-bearing elements of [a] home. . . which damage is caused by the failure of such load-bearing elements and is sufficiently severe such that your home becomes unsafe or inhabitable [sic].” Furthermore, claims regarding stucco are specifically disclaimed. Thus, considering the plain meaning of the structural warranty agreement, the Wieners’ complaint does not raise claims subject to arbitration under that agreement.

It should be noted that the arbitration provisions in the structural warranty do not provide that an arbitrator is to decide whether a claim is arbitrable. The “question of arbitrability” is a question “for judicial determination” unless the parties have “clearly and unmistakably” decided otherwise. Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002) (quoting AT & T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 649 (1986)). In finding the Wieners’ claims arbitrable, the trial court erred as a matter of law.

Because the claims made in the Wieners’ complaint are not subject to arbitration given the plain meaning of the structural warranty, there is no need to consider the Wieners’ other arguments that the arbitration provision in that warranty is unconscionable or otherwise void as against public policy.

The order staying the civil action and compelling arbitration is VACATED, and the cause is REMANDED for further proceedings.

RAY, C.J., and LEWIS, J., concur. _____________________________