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Harrington v. Pulte Home Corp.9/27/2005
reement had been signed. Id. Second, the Broemmer court was particularly impressed by what it found to be an unfair term in the arbitration clause: the requirement that the arbitrator be a physician in the same medical specialty as the doctor rendering the medical services to her. Id. at 152, 840 P.2d at 1017. Third, the Broemmer court found reason to question the circumstances under which the agreement was signed, as a condition to receive medical care and without explanation. Id. at 151, 840 P.2d at 1016.
In this case, the arbitration clause was part of a commercial transaction. The factors of potential physical injury , an emotionally charged setting for the signing of the contract, and an arbitrator arguably biased toward the party who drafted the clause, are not present. Broemmer did not replace Darner as applied to arbitration agreements. Broemmer applied the principles from Darner and found the "Agreement to Arbitrate" violated those principles. Broemmer did not establish a "sweeping legislative rule concerning all agreements to arbitrate." Id. at 153, 840 P.3d at 1018. Applying the principles from Darner to the facts here results in an enforceable arbitration clause. Thus, Broemmer and Darner are both consistent with upholding the arbitration agreement in this case.
f. Summary Re Reasonable Expectations
Arizona's reasonable-expectations doctrine, as expressed in Darner and its progeny, does not mandate separate reasonable-expectations standards as to arbitration clauses or jury trials. Broemmer did not create a new rule applicable to all standardized contracts with arbitration clauses. It applied Darner. We likewise decline to adopt a sweeping rule that precludes application of an arbitration clause that is consistent with Darner and the doctrine of reasonable expectations. We are not at liberty to create a separate "reasonable expectations" rule for arbitration clauses. Were we to do so we would run afoul of Supreme Court decisions and the FAA. See Allied-Bruce Terminix Cos., 513 U.S. at 281 ("What States may not do is decide that a contract is fair enough to enforce all its basic terms (price, service, credit), but not fair enough to enforce its arbitration clause.").
3. Substantive Unconscionability
Our supreme court has explained "that 'reasonable expectations' and unconscionability are two distinct grounds for invalidating or limiting the enforcement of a contract." Maxwell, 184 Ariz. at 88, 907 P.2d at 57. Even when contract provisions are "'consistent with the reasonable expectations of the party' they are unenforceable if they are oppressive or unconscionable." Id. (quoting Broemmer, 173 Ariz. at 151, 840 P.2d at 1016). "Substantive unconscionability concerns the actual terms of the contract and examines the relative fairness of the obligations assumed." Maxwell, 184 Ariz. at 89, 907 P.2d at 58 (citation omitted). Factors showing substantive unconscionability include "contract terms so one-sided as to oppress or unfairly surprise an innocent party, an overall imbalance in the obligations and rights imposed by the bargain, and significant cost-price disparity." Id.
" he determination of unconscionability is to be made by the court as a matter of law." Id. at 87, 907 P.2d at 56. But a court "cannot make its determination without first making factual findings." Id. Thus, we will defer to the trial court's factual findings, if any, but review the determination of unconscionability and any conclusions de novo.
In Green Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79 (2000), Randolph wished to have nullified an arbitration clause. She contended that the "arbitration agreement's silence with respect to c
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