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Vicksburg Partners9/22/2005
hat, in its practical effect, creates a windfall for one party by curtailing another. Specifically, such language can be found starting with the last sentence of that clause which states that " onsistent with the terms and conditions of this Agreement, the Parties agree that the Arbitrator(s) may not award punitive damages and actual damages awarded, if any, shall be awarded pursuant to Paragraph E.7." Paragraph E.7 of the contract provides:
Should any claim, dispute or controversy arise between the Parties or be asserted against any of the Facility's owner's (sic), officers, directors or employees, the settlement thereof shall be for actual damages not to exceed the lesser of a) $50,000 or b) the number of days the Resident was in the Facility multiplied times the daily rate applicable to said Resident. This limitation of liability shall be binding on the Resident, Responsible Party and the Resident's heirs, estate and assigns.
(Emphasis added). However, we must also read Section F and paragraph E.7 in conjunction with paragraph E.8, which states that " he parties hereto agree to waive punitive damages against each other and agree not to seek punitive damages under any circumstances." In reading this language, we find that Vicksburg Partners has effectively limited Stephens to recovery of actual damages not to exceed $50,000 while Vicksburg Partners is not so limited, and that they have precluded damages which could only be recovered against Vicksburg Partners.
. As stated, the doctrine of substantive unconscionability invalidates oppressive terms which by their very nature render a contract oppressive, such as terms which violate the reasonable expectations of parties or which involve gross disparities in price. Thus, it is beneficial and appropriate to support an argument against a suspect term by demonstrating that the term was contained in a contract in which one party has minimal bargaining power -- a contract of adhesion. East Ford, 826 So.2d at 716. Therefore, laying a foundation that a contract was one of adhesion makes an argument targeting a provision for a substantive unconscionability review easier to prove. As noted earlier, while a contract of adhesion does not demonstrate per se procedural unconscionability, it does provide a strong basis from which to attack the voluntary and knowledgeable formation of the entire contract. In much the same way, demonstrating a contract to be one of adhesion can make a facially oppressive term presumptively invalid.
. In East Ford, we noted this effect and held that a contractual term which essentially allows a party to contract away or escape liability is presumptively unconscionable. Id. It follows that contractual terms which by their very nature greatly affect the legal rights of a party to litigate or recover appropriate damages, when not freely bargained for and openly discussed, must be stricken under the doctrine of unconscionability. In Burdette Gin, we applied this very reasoning and concluded that an indemnification clause significantly altered the legal rights of the weaker party and rendered the parties' contract unconscionably oppressive. Specifically, we held that " ince it is possible that both the employer and the utility could be jointly liable in an accident such as the one at issue in this case, it is not reasonable to allow Entergy, with significantly greater bargaining power, to essentially unilaterally impose the indemnity clause upon its customers such as Burdette Gin." Burdette Gin, 726 So.2d at 1208. In so holding, we determined that the clause at issue in Burdette Gin allowed Entergy to shield itself from liability by protecting it from its own potential negligence. Id.
. In our
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