County District Court No. 14CV30176 Honorable Mary E.
& 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
Goldfarb & Rice, L.L.C., Tiffaney A. Norton, Denver,
Colorado, for Defendant-Appellant Travis Young
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.
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, 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 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.
Preservation and Standard of Review
7 The parties' motions, briefs, and arguments below
preserved the issue of the validity of the arbitration
8 Statutory interpretation is subject to de novo review.
Lewis v. Taylor, 2016 CO 48, ¶ 14.
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).
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
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 ...