Fischer v. Colorow Health Care, LLC, 2016 COA 130

Decedent Charlotte Fischer was admitted to a long-term care facility operated by Colorow Health Care/QP Health Care; her daughter (as attorney-in-fact) signed an arbitration agreement on the facility admission forms.
Plaintiffs sued for tort claims arising from the decedent’s death; defendants moved to compel arbitration under the Health Care Availability Act (HCAA), § 13-64-403.
The written arbitration agreement quoted the statutory text but contained typographical errors and did not use the statutorily required bold-faced type for the notice immediately preceding the signature lines (it used ALL CAPS in 12-point regular type instead).
The trial court initially granted the motions but, after further hearing, reversed and denied the motions to compel arbitration, holding the agreement failed to strictly comply with § 13-64-403.
Defendants appealed the denial; the Court of Appeals reviewed statutory interpretation de novo and affirmed, holding § 13-64-403 requires strict compliance and the absence of bold-faced type rendered the agreement invalid.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Degree of compliance required by § 13-64-403 (strict vs. substantial)	Fischer: statute’s repeated use of "shall," jurisdictional nature, and purpose (voluntariness) require strict compliance	Defendants: statute should allow substantial compliance; minor typographical departures do not defeat arbitration	Court: § 13-64-403 requires strict compliance (plain language, context, purpose favor strict test)
Effect of missing bold-faced type for the statutorily required notice	Fischer: lack of bold-faced type violates § 13-64-403(4) and invalidates agreement	Defendants: ALL CAPS and larger font made the language prominent; invalidation would be absurd and conflict with policy favoring arbitration	Court: absence of bold-faced type violates the statute and invalidates the agreement; not absurd and does not contravene arbitration policy
Role of public policy favoring arbitration in close calls	Fischer: statutory text controls; policy cannot override explicit statutory requirements	Defendants: strong public policy in favor of arbitration counsels enforcing agreements despite typographical defects	Court: pro-arbitration policy does not trump clear statutory mandates; it only resolves ambiguities and does not change the threshold validity analysis

City & County of Denver v. District Court, 939 P.2d 1353 (Colo. 1997) (arbitration agreement divests trial court of jurisdiction over submitted questions)
Moffett v. Life Care Centers of America, 219 P.3d 1068 (Colo. App. 2009) (statutory language acts as a procedural safeguard protecting patients from unwitting arbitration agreements)
Allen v. Pacheco, 71 P.3d 375 (Colo. 2003) (noncompliance with § 13-64-403 would render an agreement unenforceable)
Evans v. Colo. Permanente Medical Group, P.C., 926 P.2d 1218 (Colo. 1996) (arbitration agreement must comport with measures in § 13-64-403)
E. Lakewood Sanitation Dist. v. District Court, 842 P.2d 233 (Colo. 1992) (mandatory statutory language requiring strict compliance)
Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo. App. 1995) (strict compliance required where statute used mandatory language)
Caspe v. Aaacon Auto Transp., Inc., 658 F.2d 613 (8th Cir. 1981) (bold-faced type serves to make language stand out and attract reader’s attention)
In re Rosen, 198 P.3d 116 (Colo. 2008) (proof of subjective understanding may be required to establish voluntariness)