 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Sanderson Farms6/26/2003
t, a fee on the basis of a claimant's financial situation.
It is clear, however, from our reading of the evidentiary hearing transcript, that the Dobbinses never fully explored the AAA's fee waiver procedures because Mr. Dobbins refused to provide his family's financial information to the AAA. This is an important step that must be taken before an unconscionability determination can be made.Therefore, in an effort to foster the policy in favor of arbitration, we reverse and remand this case with directions to order the Dobbinses to present a reduced demand for damages and to seek a diminution or a waiver of fees from the AAA. The district court also should retain jurisdiction over the case to determine if the fee, if not waived all together, is lowered to a reasonable amount. If the district court finds that the fee is unreasonable given the current financial situation of the Dobbinses, the district court should accept the appellant's offer to pay the arbitration fees.
Id. at 717 (emphasis added).
. For its part, Sanderson Farms suggests that if this Court finds any portion of the arbitration provision unconscionable, "it should sever or modify such portion and compel arbitration, as opposed to nullifying the entire arbitration provision." A severability provision is indeed included in the Agreement. Further, pursuant to the UCC:
(1) If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.
Miss. Code Ann. ยง 75-2-302 (Rev. 2002). Sanderson Farms further cites Quinn v. EMC Corp., 109 F. Supp. 2d 681, 685-86 (S.D. Tex. 2000), as follows: "Even if the Court were convinced that Plaintiff cannot afford to pay for the arbitration proceeding, the better solution would be to nullify the fee provisions of the arbitration agreement and have Defendant EMC shoulder the expense. Plaintiff's proposed solution-abrogation of the entire arbitration agreement-is unnecessarily radical." Sanderson Farms does not, however, offer to shoulder the cost of arbitration if the cost-allocation provision is stricken, thus distinguishing the present facts from Dobbins.
. A great difference exists, at Mississippi law, between a court's severing an unconscionable provision and its rewriting a contract to include terms that neither party envisioned at the outset. "Courts cannot write into a contract that which fails to appear." S. Natural Gas Co. v. Fritz, 523 So. 2d 12, 18 (Miss. 1987). While we have recognized that equity may direct us not to enforce a contractual provision, First Nat'l Bank of Vicksburg v. Caruthers, 443 So. 2d 861, 864 n.3 (Miss. 1984), that is not the same thing as enforcing a new provision of our own creation. It bears repeating that we are forbidden by the FAA to treat arbitration provisions in contracts any differently than we would other contractual clauses.
. Admittedly, in stating that "this Court does not rewrite contracts when they are not illegal, immoral, or contrary to public policy," Travelers Indem. Co. v. Chappell, 246 So. 2d 498, 510 (Miss. 1971), we have left open the implication that we do rewrite them when those conditions do exist. We do so, however, in light of the "general rule in this state and elsewhere . . . that reformation of a contract is justified only (1) if the mistake is a mutual one, or (2) where there is a mistake on the part of one party and fraud or inequitable conduct on the part of the other." John
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Mississippi Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|