Importance of Drafting Clear and Concise Contracts – Impact on Non-Compete Cases

In the recent decision of Agile Assurance Group, Ltd. v. Palmer, 39 Fla. L. Weekly D1085 (Fla. 2d DCA May 23, 2014), the Court was required to undertake a lengthy analysis of whether the word “may” essentially meant “shall” in the disputed agreement.  While the opinion sets forth a summary of long-standing contract interpretation rules, the decision also notes that the lower court erroneously applied the “well-settled rule of construction requiring ambiguities in contracts must be construed against the drafter . . . .”  There was a provision in the contract that expressly stated that this particular rule was not applicable to the subject agreement.  As a result, the court couldn’t hold the ambiguous language against the drafter.  I make note of this because, in the context of a non-compete agreement, the statute (Fla. Stat. § 542.335(h)) specifically states that courts cannot construe those agreements against the drafter.  So, even if the “construe against the drafter” provision is not in the contract, it exists in the statute.  Thus, employees subject to non-compete agreements should not assume that their restrictive covenants are not enforceable merely because there may be some ambiguity in the document.