Fischer v. Colorow Health Care, LLC

2016 COA 130, 421 P.3d 1176

• Court: Colorado Court of Appeals
• Decided: September 8, 2016
• Docket: 15CA1252
• Status: Published

Opinion

COLORADO COURT OF APPEALS 2016COA130

Court of Appeals No. 15CA1252 Montrose County District Court No. 14CV30176 Honorable Mary E. Deganhart, Judge

Amy Fischer and Roger Fischer,

Plaintiffs-Appellees,

v.

Colorow Health Care, LLC; QP Health Care Services, LLC, d/b/a Vivage; Beverly Cole; Michael Reinhardt; and Travis Young,

Defendants-Appellants.

ORDER AFFIRMED

Division II Opinion by JUDGE WEBB Ashby and Márquez*, JJ., concur

Announced September 8, 2016

Laszlo & Associates, LLC, Theodore E. Laszlo, Jr., Michael J. Laszlo, Boulder, Colorado, The Meyer Law Firm, P.C., William R. Meyer, Boulder, Colorado, for Plaintiff-Appellee

Fennemore Craig, David Gelman, Troy R. Rackham, Denver, Colorado, for Defendant-Appellants Colorow Health Care, LLC, QP Health Care Services, LLC, Beverly Cole, and Michael Reinhardt

Senter Goldfarb & Rice, L.L.C., Tiffaney A. Norton, Denver, Colorado, for Defendant-Appellant Travis Young

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2015. ¶1 In deciding the enforceability of an agreement to arbitrate

under the Health Care Availability Act (HCAA), should the test be

strict compliance or substantial compliance with the textual and

typographical requirements of section 13-64-403, C.R.S. 2015?

And if the test is strict compliance, does the absence of bold-faced

type, required under section 13-64-403(4), doom the agreement?

Neither of these questions has been answered in Colorado.

¶2 Plaintiffs, Amy Fischer and Roger Fischer, pleaded tort claims

arising from the death of Charlotte Fischer (the decedent).

Defendants, Colorow Health Care, LLC, QP Health Care Services,

LLC, d/b/a Vivage, Travis Young, Beverly Cole, and Michael

Reinhardt, appeal the trial court’s order denying their motions to

compel arbitration. Applying the strict compliance test, we

conclude that because the arbitration agreement did not satisfy the

bold-faced type requirement, it is unenforceable. Therefore, we

affirm.

I. Facts and Procedural History

¶3 Colorow Health Care, LLC, and its management company, QP

Health Care Services, LLC, d/b/a Vivage, operate a long-term

health care facility. When the decedent was admitted to the facility,

1 her daughter, acting under a power of attorney, signed an

arbitration agreement. The decedent passed away while a resident

of the facility. The circumstances of her death are disputed.

¶4 After plaintiffs brought this action, defendants moved to

compel arbitration. Plaintiffs opposed the motions based on

discrepancies between the wording and typography of the

arbitration agreement and the requirements of section 13-64-403(3)

and (4). Initially, the trial court granted the motion, but set a

hearing on plaintiffs’ attempt to rescind the agreement.

¶5 Following that hearing and additional briefing, the court

reversed itself. It noted that while the arbitration agreement

included most of the language required by section 13-64-403(3),

“there are some typos and words omitted.” It also pointed out that

the agreement “contains the required language from section

13-64-403(4),” but this language is only in capital letters and is not

in bold-faced type, as the statute requires. Explaining that “the

entity seeking to enforce the arbitration agreement must be held to

strict compliance with [the statutory] requirements,” the court held

that the agreement “is not valid and the Motions to Compel

Arbitration are denied.” However, the court did not make any

2 findings whether the decedent’s attorney-in-fact had misunderstood

the agreement when she signed it.

¶6 Defendants then filed this interlocutory appeal as of right

under section 13-22-228(1)(a), C.R.S. 2015.

II. Preservation and Standard of Review

¶7 The parties’ motions, briefs, and arguments below preserved

the issue of the validity of the arbitration agreement.

¶8 Statutory interpretation is subject to de novo review. Lewis v.

Taylor, 2016 CO 48, ¶ 14.

III. The Statute

¶9 Section 13-64-403 is a gatekeeper. It sets out specific

language that an arbitration agreement must include to comply

with the HCAA. Subsection 403(4) provides language that must

appear “[i]mmediately preceding the signature lines for such an

agreement, . . . [and] shall be printed in at least ten-point,

bold-faced type . . . .” § 13-64-403(4). And “an agreement may . . .

be declared invalid by a court if it is shown by clear and convincing

evidence that . . . [t]he agreement failed to meet the standards for

such agreements.” § 13-64-403(10)(a).

3 IV. The Arbitration Agreement

¶ 10 The arbitration agreement between defendants and the

decedent’s daughter, as her representative, covers two-and-a-half

pages. The first page and two-thirds of the second page define the

claims and the parties subject to the agreement. Next, the

agreement parrots the required language from subsection 403(3), in

regular typeface, but with a few typographical errors and minor

departures from the statutory text.

¶ 11 After the subsection 403(3) text, the agreement quotes the

required language from subsection 403(4). This text was

capitalized, and in twelve-point font, but in regular — as opposed to

bold — typeface:

NOTE: BY SIGNING THIS AGREEMENT YOU ARE AGREEING TO HAVE ANY ISSUE OF MEDICAL MALPRACTICE DECIDED NY [sic] NEUTRAL BINDING ARBITRATION RATHER THAN [sic] JURY OR COURT TRAIL [sic].

YOU HAVE THE RIGHT TO SEEK LEGAL COUNSEL AND YOU AND [sic] RIGHT TO RESCIND THIS AGREEMENT WITHIN NINETY DAYS FROM THE DATE OF SIGNATURE BY BOTH PARTIES UNLESS THE AGREEMENT WAS SIGNED IN CONTEMPLATION OF HOSPITALIZATION IN WHICH CASE YOU HAVE NINETY DAYS AFTER DISCHARGE OR

4 RELEASE FROM THE HOSPITAL TO RESCIND THIS AGREEMENT.

Except as noted, this language nearly mirrors the text required by

subsection 403(4).

V. Validity of the Arbitration Agreement

¶ 12 Defendants concede that the text required by subsection

403(4) is not in bold-faced type and that this text, as well as the

text required by subsection 403(3), contained some typographical

errors. But they contend section 13-64-403 requires only

substantial compliance with its provisions. And according to

defendants, the arbitration agreement satisfies a substantial

compliance test because the errors were minor and the language

that should have been in bold-faced type was in all caps and in a

larger font than the statute requires — twelve-point, while the

statute only requires “at least ten-point.”

¶ 13 Plaintiffs respond that the arbitration agreement must strictly

comply with section 13-64-403, and because admittedly it did not,

it is invalid. We agree with plaintiffs that the statute requires strict

compliance. And based on the complete lack of bold-faced type, we

also agree that the agreement is invalid. By affirming denial of the

5 motions to compel arbitration on this basis, however, we need not

consider whether other anomalies in the agreement — dismissed by

defendants as trivial typographical errors — would survive a strict

compliance test.

A. Statutory Construction Principles

¶ 14 When interpreting a statute, a court’s primary goal is to

discern the legislature’s intent. See Pinnacol Assurance v. Hoff,

2016 CO 53, ¶ 48. “To divine this intent, our first recourse is the

plain language of the statute, and we refrain from rendering

judgments that are inconsistent with the intent evidenced by such

language.” Colo. Motor Vehicle Dealer Bd. v. Freeman, 2016 CO 44,

¶ 8. A court may discern the legislature’s intent by examining the

plain language “within the context of the statute as a whole.”

Lewis, ¶ 20.

¶ 15 If a statute is ambiguous, a court may examine its legislative

history to discern legislative intent. United Guar. Residential Ins.

Co. v. Dimmick, 916 P.2d 638, 641 (Colo. App. 1996). Wherever

possible, a statute should be construed “in a manner that gives

effect to all its . . . policy objectives, and not in a way that renders

one or more of its . . . goals inoperative.” Copeland v. MBNA Am.

6 Bank, N.A., 907 P.2d 87, 90 (Colo. 1995). But in all events, a court

must avoid an interpretation that “leads to an absurd result.”

Concerned Parents of Pueblo, Inc. v. Gilmore, 47 P.3d 311, 313 (Colo.

2002).

¶ 16 These principles are familiar. But applying them to section

13-64-403 involves several twists.

B. Application

¶ 17 According to plaintiffs, the arbitration agreement fails because

it did not strictly comply with section 13-64-403 in two ways: first,

the statutory language was not in bold-faced type, and, second, the

text did not precisely mirror the statutory language.

¶ 18 The initial contention raises two related questions of first

impression. Colorado courts have not decided whether section

13-64-403 demands strict compliance. Nor have they addressed

whether failure to satisfy a statutory bold-faced type requirement

means that the document must be invalidated under a strict

compliance test.1 We begin with the first question, as answering it

1 Out-of-state authority is mixed. Compare Caspe v. Aaacon Auto Transp., Inc., 658 F.2d 613, 616 (8th Cir. 1981) (noting that a clause without bold-faced type did not achieve the purpose of standing out and attracting the reader’s attention), and Niewind v.

7 in the negative would moot the second question, considering the

criteria of plain language, context, and purpose.

1. Whether Section 13-64-403 Demands Strict Compliance

a. Plain Language

¶ 19 Section 13-64-403 says that an arbitration agreement “shall”

satisfy the statute’s various requirements. See, e.g.,

§ 13-604-403(3) (“Any such agreement shall have the following

statement . . . .”) (emphasis added); § 13-64-403(4) (noting that the

“notice shall be printed in at least ten-point, bold-faced type”)

(emphasis added); § 13-64-403(6) (“The patient shall be provided

with a written copy . . . .”) (emphasis added).

Carlson, 628 N.W.2d 649, 652 (Minn. Ct. App. 2001) (“If the legislature had merely intended to require that notice be set out in a manner likely to bring it to the attention of the buyer, it would have said so.”), with Cavalier Homes of Ala., Inc. v. Sec. Pac. Hous. Servs., Inc., 5 F. Supp. 2d 712, 718 (E.D. Mo. 1997) (“[T]he Court concludes that substantial compliance with the statute is sufficient and the failure to place the statutory notice in bold type does not preclude application of the statute.”), and Fabulous Fur Corp. v. United Parcel Serv., 664 F. Supp. 694, 697-98 (E.D. N.Y. 1987) (“[D]efendant’s only failure to comply with the ICC order consisted of the failure to use a bold-print type on its bill of lading. We find that as a matter of law this was equivalent to substantial compliance with the ICC order.”), and People v. Williams, 972 N.E.2d 1265, 1269-70 (Ill. App. Ct. 2012) (bail bond form substantially complied with statute even though text was not in bold-faced type as required by statute; party was not prejudiced by noncompliance with the statute).

8 ¶ 20 “The word ‘shall’ connotes a mandatory requirement.” Willhite

v. Rodriguez-Cera, 2012 CO 29, ¶ 17. Colorado courts have held

that mandatory statutory language requires strict compliance with

its terms. See, e.g., E. Lakewood Sanitation Dist. v. Dist. Court, 842

P.2d 233, 236 (Colo. 1992) (“The presence of the word ‘shall’ in the

clause . . . dictates th[e] unambiguous reading[,]” which is strict

compliance.); Postlewait v. Midwest Barricade, 905 P.2d 21, 23-24

(Colo. App. 1995) (concluding that a party must strictly comply with

a statute that uses “shall”); see also 3 Norman J. Singer & J.D.

Shambie Singer, Sutherland Statutory Construction § 57:12 (7th ed.

2012) (“The effect of holding a statute mandatory is to require strict

compliance with its letter in order to uphold proceedings or acts

pursuant thereto or to enable persons to acquire rights under it.”).2

2 Courts outside of Colorado are in accord. See, e.g., State v. Banks, ___ A.3d ____, 2016 WL 3521973, at *12 (Conn. July 5, 2016) (“When a statutory provision involving the power of a public officer or body is mandatory, strict compliance is required and the failure to strictly comply invalidates all further proceedings.”); Bendell v. Educ. Officers Electoral Bd. for Sch. Dist. 148, 788 N.E.2d 173, 178 (Ill. App. Ct. 2003) (“Inasmuch as section 10-4 is mandatory, compliance with its provisions must be strict rather than substantial.”); Brown v. Harper, 761 S.E.2d 779, 780 (S.C. Ct. App. 2014) (“The plain and mandatory language of section 63-9-340 indicates the legislature intended strict compliance.”), aff’d, 766 S.E.2d 375 (S.C. 2014).

9 ¶ 21 Undaunted, defendants cite several Colorado cases holding

that statutes containing mandatory language required only

substantial compliance. But none of these cases interpreted

section 13-64-403. As well, their facts are distinguishable.3 Even

so, while the repeated use of “shall” favors interpreting section

13-64-403 to demand strict compliance, this arguably contrary

authority at least cautions that “shall” alone should not end the

inquiry.

¶ 22 Continuing with the plain language of the statute, section

13-64-403 sets forth the requirements for a valid arbitration

agreement. Such an agreement “divests the trial court of

3 In Woodsmall v. Regional Transportation District, 800 P.2d 63, 67 (Colo. 1990), for example, the court concluded that a statute with mandatory language only required substantial compliance. However, the legislative history of the statute “clearly indicate[d] that the sponsor of the [statute] did not intend to create a standard of absolute or literal compliance with the notice requirement[.]” Id. at 68. By contrast, here, the parties do not cite any relevant legislative history, and our review reveals none. Hence, we need not decide whether to follow cases espousing the minority view that a court may consider legislative history, without first holding a statute to be ambiguous. See, e.g., Lot Thirty-Four Venture, L.L.C. v. Town of Telluride, 976 P.2d 303, 306 (Colo. App. 1998) (“If the statutory language is clear and unambiguous, the statute should be applied as written. Nevertheless, we may also consider other indicia of legislative intent, such as the object to be attained, the legislative history, and the consequences of the particular construction.”) (citation omitted), aff’d, 3 P.3d 30 (Colo. 2000).

10 jurisdiction over all the questions that are submitted to arbitration,

pending the conclusion of arbitration.” City & Cty. of Denver v. Dist.

Court, 939 P.2d 1353, 1370 (Colo. 1997). Thus, section 13-64-403

can be characterized as a jurisdictional statute. And jurisdictional

statutes typically demand strict compliance. See, e.g., Finnie v.

Jefferson Cty. Sch. Dist. R-1, 79 P.3d 1253, 1255-56 (Colo. 2003)

(noting that a statute that set out “jurisdictional prerequisite[s] to

suit” demands strict compliance with its terms).

¶ 23 At the same time, as defendants point out, section 13-64-403

— and for that matter, the rest of the HCAA — is silent whether

strict compliance or mere substantial compliance will satisfy its

requirements. Even so, dozens of other Colorado statutes expressly

permit substantial compliance. See, e.g., § 8-47-104, C.R.S. 2015

(“Substantial compliance with the requirements of articles 40 to 47

of this title shall be sufficient . . . .”); § 31-12-107(1)(e), C.R.S. 2015

(“All petitions which substantially comply with the requirements set

forth . . . shall be deemed sufficient.”). By contrast, only six

Colorado statutes demand strict compliance. See, e.g., § 10-3-302,

C.R.S. 2015 (insurance companies must “strictly comply” with

section 10-3-201, C.R.S. 2015). This imbalance shows that the

11 General Assembly is much more likely to clarify its intent by

addressing substantial compliance than strict compliance.

¶ 24 Confirming our understanding of “shall” and the jurisdictional

implications, section 13-64-403’s silence on substantial compliance

further suggests that strict compliance is required. See In re

Williamson Vill. Condos., 653 S.E.2d 900, 904-05 (N.C. Ct. App.

2007) (“[E]ven where the General Assembly uses mandatory

language such as ‘shall’ or ‘must,’ it may still excuse noncompliance

with the use of a ‘substantial compliance’ clause.”), aff’d, 669

S.E.2d 310 (N.C. 2008).

b. Context

¶ 25 Turning to other subsections of section 13-64-403 for context,

subsection 403(10)(a) provides:

Even where it complies with the provisions of this section, such an agreement may nevertheless be declared invalid by a court if it is shown by clear and convincing evidence that . . . [t]he agreement failed to meet the standards for such agreements as specified in this section[.]

Plaintiffs read this language as providing an exception to enforcing

an arbitration agreement.

12 ¶ 26 True enough, Colorado cases have pointed out that a statutory

exception suggests that outside the scope of the exception, strict

compliance is required. See, e.g., Grandote Golf & Country Club,

LLC v. Town of La Veta, 252 P.3d 1196, 1201 (Colo. App. 2011)

(noting that the existence of a good cause exception suggests strict

compliance in the absence of good cause). Unlike the good cause

exception in Grandote, however, subsection 403(10)(a) does not

provide any criteria for deciding when noncompliance leads to

invalidity. And “[u]sually the word ‘may” denotes a grant of

discretion and is interpreted as permissive.” People v. Valadez,

2016 COA 62, ¶ 17.

¶ 27 Thus, this subsection could be read as creating unbridled

discretion to enforce an arbitration agreement, despite its

deficiencies. Such a reading would favor substantial compliance

over strict compliance.

¶ 28 But this reading misses the larger point — subsection

403(10)(a) is circular: the provision notes that “[e]ven where” an

agreement meets the requirements of section 13-64-403, the

agreement may be declared invalid if it does not meet the

requirements of section 13-64-403. Given this inartful drafting,

13 whether or how subsection 403(10)(a) could affect interpretation of

section 13-64-403 as a whole presents a conundrum that we

decline to unravel. See Concerned Parents of Pueblo, Inc., 47 P.3d at

314 (“If the ‘person’ performing the service, to whom the statute

refers, is the organization serving young people itself, then the

statute presents a circular conundrum.”). Instead, we seek clearer

guidance from the General Assembly’s stated purpose in enacting

section 13-64-403.

c. Statutory Purpose

¶ 29 Assessing the purpose of section 13-64-403 is “critical” in

determining the degree of compliance that the statute requires.

Wainscott v. Centura Health Corp., 2014 COA 105, ¶ 26 (citation

omitted); see also Charnes v. Norwest Leasing, Inc., 787 P.2d 145,

147 (Colo. 1990) (“We have approved of a rule of substantial

compliance with a statute when such a rule serves the purposes of

the statute.”).

¶ 30 First, consider that the overall purpose of the HCAA is to

“assure the continued availability of adequate health care services

to the people of this state by containing the significantly increasing

costs of malpractice insurance for medical care institutions and

14 licensed medical care professionals . . . .” § 13-64-102(1), C.R.S.

2015. Yet, as to this overall purpose, neither party argues, nor do

we discern, any nexus to either horn of the strict compliance versus

substantial compliance dilemma.

¶ 31 Next, consider the more specific objective that “an arbitration

agreement be a voluntary agreement between a patient and a health

care provider . . . .” § 13-64-403(1); see also Moffett v. Life Care

Ctrs. of Am., 219 P.3d 1068, 1074 (Colo. 2009) (noting that the

“precise language” of section 13-64-403’s requirements acts as a

procedural safeguard, protecting patients from unwittingly entering

into arbitration agreements); Colo. Permanente Med. Grp., P.C. v.

Evans, 926 P.2d 1218, 1227 n.17 (Colo. 1996) (same).

¶ 32 Section 13-64-403’s textual and typographical requirements

ensure that the signatory to an arbitration agreement receives

specific information in a prominent format. And everyone would

agree that if the signatory misunderstood such an agreement

because of content or format deficiencies, the signatory likely did

not enter into it voluntarily. Cf. People v. Alexander, 797 P.2d 1250,

1256 (Colo. 1990) (noting that to establish the voluntariness of a

plea, the record must show defendant understood the rights he was

15 waiving by pleading guilty). Thus, a closer look shows that these

typographical and textual requirements are proxies for

voluntariness.

¶ 33 Defendants do not explain how substantial compliance either

directly furthers voluntariness or indirectly advances it by

increasing understanding. Nor do we see that they could make

either showing. To the contrary, for the following reasons,

substantial compliance creates a greater risk of misunderstanding

than does strict compliance.

¶ 34 Of course, substantial compliance could sometimes achieve

the same level of understanding as strict compliance. Still, because

understanding is subjective, a substantial compliance test would

burden a patient or the patient’s representative to show that for

lack of complying language and typography, the effect of an

arbitration agreement was not understood. Thus, substantial

compliance inflicts the costs and uncertainty of litigating

understanding, as a proxy for voluntariness, on the patient or

representative. And the patient or representative would have to

carry that burden in the face of language — albeit noncompliant

with the statute — describing the agreement’s effect. Cf. In re

16 Rosen, 198 P.3d 116, 119 (Colo. 2008) (“[W]e cannot say, as a

matter of law, that no reasonable fact finder could be unconvinced

by the circumstantial evidence of the respondent’s subjective

intent.”).

¶ 35 Even worse, resolving understanding on a case-by-case basis

under a substantial compliance standard could lead to inconsistent

results. For example, one trial court might conclude that

regular-faced type, but in sixteen-point font, substantially complies

with subsection 403(4). Another court may reach the opposite

conclusion, reasoning that even sixteen-point font lacks the impact

of bold-faced type. And therein lies the problem — substantial

compliance is inherently elastic. See Grp., Inc. v. Spanier, 940 P.2d

1120, 1122 (Colo. App. 1997) (“Substantial compliance is less than

absolute, but still requires a significant level of conformity.”); see

also Myears v. Charles Mix Cty., 566 N.W.2d 470, 474 (S.D. 1997)

(“What constitutes substantial compliance with a statute is a matter

depending on the facts of each particular case.”) (citations omitted).

¶ 36 By contrast, under a strict compliance test, the burden would

fall on the health care facility to show strict compliance with section

13-64-403. After all, the facility — not the patient or the patient’s

17 representative — prepared the agreement. Unlike the patient’s

burden under a substantial compliance standard, the health care

facility’s burden would be low, given the ease of complying with

section 13-64-403’s requirements by quoting the language verbatim

and adhering to the unambiguous typographical requirements.

Thus, under this standard, voluntariness would not be at risk

merely because of a patient’s or representative’s difficulty in proving

subjective misunderstanding of an agreement.

¶ 37 As well, the results would be consistent: if section 13-64-403’s

requirements were met, the agreement would be valid. A statutory

interpretation producing consistent results is preferable over one

that produces inconsistent results. Cf. United States v. Dion, 752

F.2d 1261, 1267 (8th Cir. 1985) (noting that one analytical test is

“more desirable” because it leads to “more consistent results,”

among other reasons); Sportwear Hosiery Mills v. Comm’r, 129 F.2d

376, 379 (3d Cir. 1942) (“[W]e think that the construction offered by

the Commissioner leads to more consistent results and presumably,

therefore, is within the Congressional intent.”).

18 ¶ 38 Given all this, the General Assembly’s stated purpose —

voluntariness of arbitration agreements — is better served by

demanding strict compliance with section 13-64-403.

¶ 39 In sum, based on these three factors — plain language,

context, and purpose — we conclude that section 13-64-403 calls

for strict compliance. This conclusion accords with dicta in which

the supreme court said that noncompliance with section 13-64-403

“alone would render the agreement unenforceable.” Allen v.

Pacheco, 71 P.3d 375, 381 (Colo. 2003); see also Evans, 926 P.2d at

1228 (noting that an arbitration agreement “must comport with the

other measures” in section 13-64-403). But this conclusion does

not resolve the consequences of noncompliance.

2. Whether Lack of Bold-Faced Type Dooms the Agreement

a. Absurd Results

¶ 40 Defendants’ argument that invalidating an agreement based

on a lack of bold-faced type leads to an absurd result — because

the arbitration agreement still contained the requisite wording and

in a typographically prominent format — misses the mark.

¶ 41 Defendants begin with a false analogy: a strict compliance

standard would invalidate otherwise adequate agreements where,

19 for example, the agreement substituted synonyms for statutorily

required words. To avoid this absurd result, they continue, strict

compliance must excuse minor departures from statutory

requirements that could have had no practical effect on the reader.

And according to defendants, this same rationale applies to the

absence of bold-faced type: to avoid an absurd result, this anomaly

too must be excused, even under a strict compliance standard,

where it had no practical effect on the reader.

¶ 42 Not so fast. This analogy equates substituting a synonym in

an agreement with failing to use a required typeface. But we know

that by definition, substituting a synonym could not have any

effect. See Webster’s Third New Int’l Dictionary 2320 (2002) (“A

[synonym is a] word having the same meaning as another word.”).

The opposite is true for the failure to use bold-faced type. See

Caspe v. Aaacon Auto Transp., Inc., 658 F.2d 613, 616 (8th Cir.

1981) (noting that bold-faced type allows language to “stand out

and attract the reader’s attention”); Stauffer Chem. Co v. Curry, 778

P.2d 1083, 1092 (Wyo. 1989) (acknowledging that bold-faced type

allows words to “stand out prominently from surrounding words”).

20 ¶ 43 In the absence of any authority holding that strict compliance

with a bold typeface requirement produces an absurd result, we

reject defendants’ contention.

b. Public Policy

¶ 44 Finally, defendants’ argument that Colorado’s “strong public

policy in favor of arbitration[,]” Braata, Inc. v. Oneida Cold Storage

Co., LLP, 251 P.3d 584, 590 (Colo. App. 2010), compels enforcing

the arbitration agreement, even in the absence of bold-faced type,

also falls short.

¶ 45 To begin, the HCAA recognizes this policy. But it also

acknowledges that noncompliant agreements are inconsistent with

public policy. See § 13-64-403(2) (“Any agreement . . . for binding

arbitration . . . that conforms to the provisions of this section shall

not be deemed contrary to the public policy of this state, except as

provided in subsection (10) of this section.”); see also Braata, Inc.,

251 P.3d at 587 (noting that the strong policy in favor of arbitration

“does not trump statutory plain language”).

¶ 46 As well, the policy favoring arbitration is a tie-breaker used to

“construe any ambiguities.” BFN-Greeley, LLC v. Adair Grp., Inc.,

141 P.3d 937, 940 (Colo. App. 2006). But the discrepancies

21 between the arbitration agreement and the statutory requirements

do not involve ambiguities. Nor do defendants cite, and we have not

found in Colorado, authority holding that that the policy favoring

arbitration tilts the playing field on which courts decide the

threshold question of whether an arbitration agreement is valid.

Thus, we conclude Colorado’s policy in favor of arbitration does not

change our conclusion.

VI. Conclusion

¶ 47 That the arbitration agreement entirely lacked bold-faced type

is undisputed, and we have concluded that section 13-64-403

demands strict compliance. Therefore, clear and convincing

evidence shows that the agreement violated section 13-64-403(4).

And invalidating it for the lack of bold-faced type neither creates an

absurd result nor violates public policy favoring arbitration. Having

invalidated the agreement on this basis, we need not determine

whether the agreement is also invalid because of typographical

errors and minor wording discrepancies.

¶ 48 The order of the trial court denying the motions to compel

arbitration is affirmed.

JUDGE ASHBY and JUDGE MÁRQUEZ concur.