Florida Court Sends Patient’s Protests Over Nude Photos to Arbitration
The plaintiff in M.P. v. Guiribitey Cosmetic & Beauty Inst. sough elective, cosmetic surgery from the defendant (Guiribitey). When she paid her deposit, the invoice included a choice-of-law provision providing for arbitration. On the eve of surgery, she received a 49-page packet, which included provisions for the use of photographs of the plaintiff:
The photographs may be used (anonymously) included and not limited to television, interviews, programs produced for cable TV, on the Internet, social media Facebook, Instagram, Snapchat or other media, for marketing, educational or promotional materials.
Although the plaintiff could have refused or qualified the scope of her consent, she did not do so. This packet also included a broad arbitration agreement that the plaintiff signed.
Upon discovering nude images of her body on Instagram, plaintiff sued, and Guiribitey moved to compel arbitration. Plaintiff alleged that the last-minute presentation of the arbitration agreement, the nonrefundable nature of her deposit, and judicial carve-out for fee collection claims rendered the agreement unconscionable and the product of duress. The trial court granted the motion to compel, and plaintiff appealed.
Much of the intermediate appellate court’s opinion is taken up with plaintiff’s argument on unconscionability. As to procedural unconscionability, plaintiff did not offer much beyond the argument that the contract was adhesive and offered on a take-it-or-leave-it basis. No other indicia of procedural unconscionability were present. The font was not unusual; the provisions were clearly delineated.
On substance, plaintiff had even less. She argued that the carve-out from arbitration for fee disputes rendered the arbitration provision substantively unconscionable. The court, however, found that such provisions are common and accord with common sense, as fee disputes are routine matters that would be unnecessarily complicated by subjecting them to arbitration.
Plaintiff’s duress claim was equally unsuccessful. She argued that her agreement was coerced because the main arbitration agreement came only after she had already paid a non-refundable deposit. However, she was given notice that her relationship with Guiribitey would be governed by an arbitration agreement when she paid her deposit.
Finally, the dispute was clearly within the scope of the arbitration agreement, and so the court granted Guiribitey’s motion to compel.