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Vicksburg Partners9/22/2005
ss.1990); Plaza Amusement Co. v. Rothenberg, 159 Miss. 800, 131 So. 350, 357 (1930) ("If an illegal condition is annexed to a contract, it will not void the whole contract, but the illegal part will be treated as void.") (citing Adams v. Standard Oil Co., 97 Miss. 879, 53 So. 692 (1910)). Also, the Fifth Circuit has held that a limitation in an insurance policy was void under Mississippi law, but that the remainder of the policy was not affected by the void provision. Richards v. Allstate Ins. Co., 693 F.2d 502, 505 (5th Cir.1982). Finally, the United States District Court for the Southern District of Mississippi, applying Mississippi law, specifically struck a time limitation period contained in a contract and declared that the remainder of the contract was binding. Smith v. Orkin Exterminating Co., 791 F.Supp. 1137, 1142 (S.D.Miss.1990). We find that, even if the limitation time period contained in the arbitration agreement were void, the arbitration agreement is still binding. Performance Toyota, 826 So.2d at 724-25.
. Of particular note, the parties' contract recognizes this contractual "saving" device and explicitly acknowledges the preferred remedy of striking unenforceable provisions as opposed to the draconian remedy of striking the entire agreed upon and otherwise valid contractual arrangements. To this end, both admissions agreements contain an identical paragraph which states: "In the event any provision of this Agreement is held to be unenforceable for any reason, the unenforceability thereof shall not affect the remainder of this Agreement, which shall remain in full force and effect and enforceable in accordance with its terms." This language is delineated as paragraph E.1 under "Miscellaneous Provisions" in the first admissions agreement and as paragraph E.1 under "Other Important Provisions" in the second admissions agreement.
. In today's case, we have referred to our prior decisions in East Ford and Burdette Gin, both which cited Bank of Indiana decided by the United States District Court for the Southern District of Mississippi. In Bank of Indiana, the district court stated:
The law of Mississippi imposes an obligation of good faith and fundamental fairness in the performance of every contract governed thereby; in fact, this requirement is so pronounced that courts have the power to refuse to enforce any contract or limit the application of any clause therein in order to avoid an unconscionable result. Miss. Code Ann. ยง 75-2-302 (1972) states:
(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.
476 F. Supp. at 109. Thus, our action today in finding a portion of the arbitration clause to be unconscionable, but yet enforcing the remainder of the arbitration clause which we find to be conscionable and otherwise enforceable, is consistent with our case law, statute, and basic principles of contract law.
. We have considered our recent decision in Pitts v. Watkins, 905 So.2d 553 (Miss. 2005), and find that this case is clearly distinguishable. In Pitts, we were confronted with a contract which, inter alia, (1) allowed one party to the contract to go to court to recover damages, while the other party was limited to arbitration, (2) attempted to shorten the statute of limitations, and (3) limited the amount of damages one of the parties could otherwise recover as a matter of law. Id. at 558. The language in the arbit
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