Font in arbitration agreement good enough, despite not being in bold, Colo. SC rules

By Elizabeth Alt | Jun 28, 2018

DENVER (Legal Newsline) – In a June 11 opinion, the Colorado Supreme Court ruled that arbitration agreements under the Health Care Availability Act can still be enforced even if they do not strictly follow the statute requirements for the language.

The decision reverses the Colorado Court of Appeals ruling that a family suing a facility over wrongful death allegations was not bound by the arbitration agreement because it didn’t comply with the statute. 

“After considering the statute’s text and purpose, we conclude it demands only substantial compliance,” the court stated. The opinion was written by Justice William Hood, with justices Melissa Hart and Richard Gabriel dissenting. 

Amy Fischer and Roger Fischer filed a wrongful death suit against Colorow Health Care LLC; and QPHealth Care Services LLC, doing business as Vivage; Travis Young; Beverly Cole; and Michael Reinhardt after the death of their grandmother, Charlotte Fischer, alleging Charlotte’s death was the result of an assault by one of the staff at the facility.

In 2012, Charlotte’s daughter, Judith, signed the entry paperwork when moving Charlotte into the nursing home, including an arbitration agreement. The Fischers do not dispute that Judith signed the arbitration agreement but claim that it is not enforceable because the HCAA statute requires that an arbitration clause include specific language to inform patients that signing is voluntary and that they will not be denied care if they choose not to sign. The statute also requires that “language be printed just above the signature line emphasized by at least 10-point font and bold-faced type." Colorow’s agreement was in 12-point font, but not in bold-faced type. 

The trial court and court of appeals both dismissed Colorow’s motion to compel arbitration, stating that the arbitration agreement was void because it was not in bold-face type and did not comply with the HCAA statute requiring strict compliance. 

The Supreme Court order stated that while it agreed with the previous courts that the statute text was broad and didn’t state the required level of compliance, “We don’t believe that the General Assembly intended to elevate form over function."

Hood disagreed with the Fischers’ argument that “the presence of explicit exceptions in a statute can suggest the General Assembly intended to preclude excusing strict compliance for any other reason.”

The Supreme Court stated that “it can reasonably be inferred that the Facility made a good faith effort to comply with the statute” because the font was larger than required and set apart from other text. 

“Even if a health care company perfectly adhered to the statute, it does not necessarily follow that bold-faced, 10-point font properly emphasizes the required text,” the order states.

Hood stated that using a substantial-compliant standard would “send the right issues to court” 

In the dissent joined by Gabriel, Hart favored a strict-compliance standard, stating that the legislature “meant to protect against coercion in no uncertain terms."

Hart agreed with the Fischers that this substantial-compliance standard could lead to more lawsuits in court.

“Compliance with the HCAA’s provisions is not an onerous burden. Colorow Health Care should simply have followed the very clear rules set out by the statute and they should have done so in strict compliance with those rules,” Hart stated.

The defendants are represented by David Gelman and Alan Epstein of Hall & Evans LLC and Tiffaney Norton with Senter Goldfarb & Rice.

The Fischers are represented by Theodore E. Laszlo Jr. and Michael J. Laszlo with Laszlolaw in Boulder, Colorado, and William R. Meyer of The Meyer Law Firm in Boulder, Colorado.

Supreme Court of the State of Colorado case number 16SC814

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