COLORADO COURT OF APPEALS                                         2016COA130


Court of Appeals No. 15CA1252
Montrose County District Court No. 14CV30176
Honorable Mary E. Deganhart, Judge


Amy Fischer and Roger Fischer,

Plaintiffs-Appellees,

v.

Colorow Health Care, LLC; QP Health Care Services, LLC, d/b/a Vivage;
Beverly Cole; Michael Reinhardt; and Travis Young,

Defendants-Appellants.


                              ORDER AFFIRMED

                                  Division II
                           Opinion by JUDGE WEBB
                        Ashby and Márquez*, JJ., concur

                         Announced September 8, 2016


Laszlo & 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 Reinhardt

Senter Goldfarb & Rice, L.L.C., Tiffaney A. Norton, Denver, Colorado, for
Defendant-Appellant Travis Young


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2015.
¶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.

                  I.   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,


                                   1
 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


                                    2
 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.

               II.   Preservation and Standard of Review

¶7    The parties’ motions, briefs, and arguments below preserved

 the issue of the validity of the arbitration agreement.

¶8    Statutory interpretation is subject to de novo review. Lewis v.

 Taylor, 2016 CO 48, ¶ 14.

                            III.   The Statute

¶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).




                                     3
                     IV.   The Arbitration Agreement

¶ 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 text.

¶ 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 DISCHARGE OR



                                    4
             RELEASE FROM THE HOSPITAL TO RESCIND
             THIS AGREEMENT.

  Except as noted, this language nearly mirrors the text required by

  subsection 403(4).

                V.     Validity of the Arbitration Agreement

¶ 12   Defendants concede that the text required by subsection

  403(4) is not in bold-faced type and that this text, as well as the

  text required by subsection 403(3), contained some typographical

  errors. But they contend section 13-64-403 requires only

  substantial compliance with its provisions. And according to

  defendants, the arbitration agreement satisfies a substantial

  compliance test because the errors were minor and the language

  that should have been in bold-faced type was in all caps and in a

  larger font than the statute requires — twelve-point, while the

  statute only requires “at least ten-point.”

¶ 13   Plaintiffs respond that the arbitration agreement must strictly

  comply with section 13-64-403, and because admittedly it did not,

  it is invalid. We agree with plaintiffs that the statute requires strict

  compliance. And based on the complete lack of bold-faced type, we

  also agree that the agreement is invalid. By affirming denial of the



                                      5
  motions to compel arbitration on this basis, however, we need not

  consider whether other anomalies in the agreement — dismissed by

  defendants as trivial typographical errors — would survive a strict

  compliance test.

                  A.   Statutory Construction Principles

¶ 14   When interpreting a statute, a court’s primary goal is to

  discern the legislature’s intent. See Pinnacol Assurance v. Hoff,

  2016 CO 53, ¶ 48. “To divine this intent, our first recourse is the

  plain language of the statute, and we refrain from rendering

  judgments that are inconsistent with the intent evidenced by such

  language.” Colo. Motor Vehicle Dealer Bd. v. Freeman, 2016 CO 44,

  ¶ 8. A court may discern the legislature’s intent by examining the

  plain language “within the context of the statute as a whole.”

  Lewis, ¶ 20.

¶ 15   If a statute is ambiguous, a court may examine its legislative

  history to discern legislative intent. United Guar. Residential Ins.

  Co. v. Dimmick, 916 P.2d 638, 641 (Colo. App. 1996). Wherever

  possible, a statute should be construed “in a manner that gives

  effect to all its . . . policy objectives, and not in a way that renders

  one or more of its . . . goals inoperative.” Copeland v. MBNA Am.


                                      6
  Bank, N.A., 907 P.2d 87, 90 (Colo. 1995). But in all events, a court

  must avoid an interpretation that “leads to an absurd result.”

  Concerned Parents of Pueblo, Inc. v. Gilmore, 47 P.3d 311, 313 (Colo.

  2002).

¶ 16   These principles are familiar. But applying them to section

  13-64-403 involves several twists.

                            B.    Application

¶ 17   According to plaintiffs, the arbitration agreement fails because

  it did not strictly comply with section 13-64-403 in two ways: first,

  the statutory language was not in bold-faced type, and, second, the

  text did not precisely mirror the statutory language.

¶ 18   The initial contention raises two related questions of first

  impression. Colorado courts have not decided whether section

  13-64-403 demands strict compliance. Nor have they addressed

  whether failure to satisfy a statutory bold-faced type requirement

  means that the document must be invalidated under a strict

  compliance test.1 We begin with the first question, as answering it


  1 Out-of-state authority is mixed. Compare Caspe v. Aaacon Auto
  Transp., Inc., 658 F.2d 613, 616 (8th Cir. 1981) (noting that a
  clause without bold-faced type did not achieve the purpose of
  standing out and attracting the reader’s attention), and Niewind v.

                                    7
  in the negative would moot the second question, considering the

  criteria of plain language, context, and purpose.

       1.   Whether Section 13-64-403 Demands Strict Compliance

                           a.   Plain Language

¶ 19    Section 13-64-403 says that an arbitration agreement “shall”

  satisfy the statute’s various requirements. See, e.g.,

  § 13-604-403(3) (“Any such agreement shall have the following

  statement . . . .”) (emphasis added); § 13-64-403(4) (noting that the

  “notice shall be printed in at least ten-point, bold-faced type”)

  (emphasis added); § 13-64-403(6) (“The patient shall be provided

  with a written copy . . . .”) (emphasis added).

  Carlson, 628 N.W.2d 649, 652 (Minn. Ct. App. 2001) (“If the
  legislature had merely intended to require that notice be set out in a
  manner likely to bring it to the attention of the buyer, it would have
  said so.”), with Cavalier Homes of Ala., Inc. v. Sec. Pac. Hous. Servs.,
  Inc., 5 F. Supp. 2d 712, 718 (E.D. Mo. 1997) (“[T]he Court
  concludes that substantial compliance with the statute is sufficient
  and the failure to place the statutory notice in bold type does not
  preclude application of the statute.”), and Fabulous Fur Corp. v.
  United Parcel Serv., 664 F. Supp. 694, 697-98 (E.D. N.Y. 1987)
  (“[D]efendant’s only failure to comply with the ICC order consisted
  of the failure to use a bold-print type on its bill of lading. We find
  that as a matter of law this was equivalent to substantial
  compliance with the ICC order.”), and People v. Williams, 972
  N.E.2d 1265, 1269-70 (Ill. App. Ct. 2012) (bail bond form
  substantially complied with statute even though text was not in
  bold-faced type as required by statute; party was not prejudiced by
  noncompliance with the statute).

                                     8
¶ 20   “The word ‘shall’ connotes a mandatory requirement.” Willhite

  v. Rodriguez-Cera, 2012 CO 29, ¶ 17. Colorado courts have held

  that mandatory statutory language requires strict compliance with

  its terms. See, e.g., E. Lakewood Sanitation Dist. v. Dist. Court, 842

  P.2d 233, 236 (Colo. 1992) (“The presence of the word ‘shall’ in the

  clause . . . dictates th[e] unambiguous reading[,]” which is strict

  compliance.); Postlewait v. Midwest Barricade, 905 P.2d 21, 23-24

  (Colo. App. 1995) (concluding that a party must strictly comply with

  a statute that uses “shall”); see also 3 Norman J. Singer & J.D.

  Shambie Singer, Sutherland Statutory Construction § 57:12 (7th ed.

  2012) (“The effect of holding a statute mandatory is to require strict

  compliance with its letter in order to uphold proceedings or acts

  pursuant thereto or to enable persons to acquire rights under it.”).2


  2 Courts outside of Colorado are in accord. See, e.g., State v.
  Banks, ___ A.3d ____, 2016 WL 3521973, at *12 (Conn. July 5,
  2016) (“When a statutory provision involving the power of a public
  officer or body is mandatory, strict compliance is required and the
  failure to strictly comply invalidates all further proceedings.”);
  Bendell v. Educ. Officers Electoral Bd. for Sch. Dist. 148, 788 N.E.2d
  173, 178 (Ill. App. Ct. 2003) (“Inasmuch as section 10-4 is
  mandatory, compliance with its provisions must be strict rather
  than substantial.”); Brown v. Harper, 761 S.E.2d 779, 780 (S.C. Ct.
  App. 2014) (“The plain and mandatory language of section 63-9-340
  indicates the legislature intended strict compliance.”), aff’d, 766
  S.E.2d 375 (S.C. 2014).

                                     9
¶ 21   Undaunted, defendants cite several Colorado cases holding

  that statutes containing mandatory language required only

  substantial compliance. But none of these cases interpreted

  section 13-64-403. As well, their facts are distinguishable.3 Even

  so, while the repeated use of “shall” favors interpreting section

  13-64-403 to demand strict compliance, this arguably contrary

  authority at least cautions that “shall” alone should not end the

  inquiry.

¶ 22   Continuing with the plain language of the statute, section

  13-64-403 sets forth the requirements for a valid arbitration

  agreement. Such an agreement “divests the trial court of

  3 In Woodsmall v. Regional Transportation District, 800 P.2d 63, 67
  (Colo. 1990), for example, the court concluded that a statute with
  mandatory language only required substantial compliance.
  However, the legislative history of the statute “clearly indicate[d]
  that the sponsor of the [statute] did not intend to create a standard
  of absolute or literal compliance with the notice requirement[.]” Id.
  at 68. By contrast, here, the parties do not cite any relevant
  legislative history, and our review reveals none. Hence, we need not
  decide whether to follow cases espousing the minority view that a
  court may consider legislative history, without first holding a
  statute to be ambiguous. See, e.g., Lot Thirty-Four Venture, L.L.C. v.
  Town of Telluride, 976 P.2d 303, 306 (Colo. App. 1998) (“If the
  statutory language is clear and unambiguous, the statute should be
  applied as written. Nevertheless, we may also consider other indicia
  of legislative intent, such as the object to be attained, the legislative
  history, and the consequences of the particular construction.”)
  (citation omitted), aff’d, 3 P.3d 30 (Colo. 2000).

                                     10
  jurisdiction over all the questions that are submitted to arbitration,

  pending the conclusion of arbitration.” City & Cty. of Denver v. Dist.

  Court, 939 P.2d 1353, 1370 (Colo. 1997). Thus, section 13-64-403

  can be characterized as a jurisdictional statute. And jurisdictional

  statutes typically demand strict compliance. See, e.g., Finnie v.

  Jefferson Cty. Sch. Dist. R-1, 79 P.3d 1253, 1255-56 (Colo. 2003)

  (noting that a statute that set out “jurisdictional prerequisite[s] to

  suit” demands strict compliance with its terms).

¶ 23   At the same time, as defendants point out, section 13-64-403

  — and for that matter, the rest of the HCAA — is silent whether

  strict compliance or mere substantial compliance will satisfy its

  requirements. Even so, dozens of other Colorado statutes expressly

  permit substantial compliance. See, e.g., § 8-47-104, C.R.S. 2015

  (“Substantial compliance with the requirements of articles 40 to 47

  of this title shall be sufficient . . . .”); § 31-12-107(1)(e), C.R.S. 2015

  (“All petitions which substantially comply with the requirements set

  forth . . . shall be deemed sufficient.”). By contrast, only six

  Colorado statutes demand strict compliance. See, e.g., § 10-3-302,

  C.R.S. 2015 (insurance companies must “strictly comply” with

  section 10-3-201, C.R.S. 2015). This imbalance shows that the


                                      11
  General Assembly is much more likely to clarify its intent by

  addressing substantial compliance than strict compliance.

¶ 24   Confirming our understanding of “shall” and the jurisdictional

  implications, section 13-64-403’s silence on substantial compliance

  further suggests that strict compliance is required. See In re

  Williamson Vill. Condos., 653 S.E.2d 900, 904-05 (N.C. Ct. App.

  2007) (“[E]ven where the General Assembly uses mandatory

  language such as ‘shall’ or ‘must,’ it may still excuse noncompliance

  with the use of a ‘substantial compliance’ clause.”), aff’d, 669

  S.E.2d 310 (N.C. 2008).

                              b.    Context

¶ 25   Turning to other subsections of section 13-64-403 for context,

  subsection 403(10)(a) provides:

            Even where it complies with the provisions of
            this section, such an agreement may
            nevertheless 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 as specified in
            this section[.]

  Plaintiffs read this language as providing an exception to enforcing

  an arbitration agreement.




                                    12
¶ 26   True enough, Colorado cases have pointed out that a statutory

  exception suggests that outside the scope of the exception, strict

  compliance is required. See, e.g., Grandote Golf & Country Club,

  LLC v. Town of La Veta, 252 P.3d 1196, 1201 (Colo. App. 2011)

  (noting that the existence of a good cause exception suggests strict

  compliance in the absence of good cause). Unlike the good cause

  exception in Grandote, however, subsection 403(10)(a) does not

  provide any criteria for deciding when noncompliance leads to

  invalidity. And “[u]sually the word ‘may” denotes a grant of

  discretion and is interpreted as permissive.” People v. Valadez,

  2016 COA 62, ¶ 17.

¶ 27   Thus, this subsection could be read as creating unbridled

  discretion to enforce an arbitration agreement, despite its

  deficiencies. Such a reading would favor substantial compliance

  over strict compliance.

¶ 28   But this reading misses the larger point — subsection

  403(10)(a) is circular: the provision notes that “[e]ven where” an

  agreement meets the requirements of section 13-64-403, the

  agreement may be declared invalid if it does not meet the

  requirements of section 13-64-403. Given this inartful drafting,


                                    13
  whether or how subsection 403(10)(a) could affect interpretation of

  section 13-64-403 as a whole presents a conundrum that we

  decline to unravel. See Concerned Parents of Pueblo, Inc., 47 P.3d at

  314 (“If the ‘person’ performing the service, to whom the statute

  refers, is the organization serving young people itself, then the

  statute presents a circular conundrum.”). Instead, we seek clearer

  guidance from the General Assembly’s stated purpose in enacting

  section 13-64-403.

                         c.   Statutory Purpose

¶ 29   Assessing the purpose of section 13-64-403 is “critical” in

  determining the degree of compliance that the statute requires.

  Wainscott v. Centura Health Corp., 2014 COA 105, ¶ 26 (citation

  omitted); see also Charnes v. Norwest Leasing, Inc., 787 P.2d 145,

  147 (Colo. 1990) (“We have approved of a rule of substantial

  compliance with a statute when such a rule serves the purposes of

  the statute.”).

¶ 30   First, consider that the overall purpose of the HCAA is to

  “assure the continued availability of adequate health care services

  to the people of this state by containing the significantly increasing

  costs of malpractice insurance for medical care institutions and


                                    14
  licensed medical care professionals . . . .” § 13-64-102(1), C.R.S.

  2015. Yet, as to this overall purpose, neither party argues, nor do

  we discern, any nexus to either horn of the strict compliance versus

  substantial compliance dilemma.

¶ 31   Next, consider the more specific objective that “an arbitration

  agreement be a voluntary agreement between a patient and a health

  care provider . . . .” § 13-64-403(1); see also Moffett v. Life Care

  Ctrs. of Am., 219 P.3d 1068, 1074 (Colo. 2009) (noting that the

  “precise language” of section 13-64-403’s requirements acts as a

  procedural safeguard, protecting patients from unwittingly entering

  into arbitration agreements); Colo. Permanente Med. Grp., P.C. v.

  Evans, 926 P.2d 1218, 1227 n.17 (Colo. 1996) (same).

¶ 32   Section 13-64-403’s textual and typographical requirements

  ensure that the signatory to an arbitration agreement receives

  specific information in a prominent format. And everyone would

  agree that if the signatory misunderstood such an agreement

  because of content or format deficiencies, the signatory likely did

  not enter into it voluntarily. Cf. People v. Alexander, 797 P.2d 1250,

  1256 (Colo. 1990) (noting that to establish the voluntariness of a

  plea, the record must show defendant understood the rights he was


                                     15
  waiving by pleading guilty). Thus, a closer look shows that these

  typographical and textual requirements are proxies for

  voluntariness.

¶ 33   Defendants do not explain how substantial compliance either

  directly furthers voluntariness or indirectly advances it by

  increasing understanding. Nor do we see that they could make

  either showing. To the contrary, for the following reasons,

  substantial compliance creates a greater risk of misunderstanding

  than does strict compliance.

¶ 34   Of course, substantial compliance could sometimes achieve

  the same level of understanding as strict compliance. Still, because

  understanding is subjective, a substantial compliance test would

  burden a patient or the patient’s representative to show that for

  lack of complying language and typography, the effect of an

  arbitration agreement was not understood. Thus, substantial

  compliance inflicts the costs and uncertainty of litigating

  understanding, as a proxy for voluntariness, on the patient or

  representative. And the patient or representative would have to

  carry that burden in the face of language — albeit noncompliant

  with the statute — describing the agreement’s effect. Cf. In re


                                    16
  Rosen, 198 P.3d 116, 119 (Colo. 2008) (“[W]e cannot say, as a

  matter of law, that no reasonable fact finder could be unconvinced

  by the circumstantial evidence of the respondent’s subjective

  intent.”).

¶ 35    Even worse, resolving understanding on a case-by-case basis

  under a substantial compliance standard could lead to inconsistent

  results. For example, one trial court might conclude that

  regular-faced type, but in sixteen-point font, substantially complies

  with subsection 403(4). Another court may reach the opposite

  conclusion, reasoning that even sixteen-point font lacks the impact

  of bold-faced type. And therein lies the problem — substantial

  compliance is inherently elastic. See Grp., Inc. v. Spanier, 940 P.2d

  1120, 1122 (Colo. App. 1997) (“Substantial compliance is less than

  absolute, but still requires a significant level of conformity.”); see

  also Myears v. Charles Mix Cty., 566 N.W.2d 470, 474 (S.D. 1997)

  (“What constitutes substantial compliance with a statute is a matter

  depending on the facts of each particular case.”) (citations omitted).

¶ 36    By contrast, under a strict compliance test, the burden would

  fall on the health care facility to show strict compliance with section

  13-64-403. After all, the facility — not the patient or the patient’s


                                     17
  representative — prepared the agreement. Unlike the patient’s

  burden under a substantial compliance standard, the health care

  facility’s burden would be low, given the ease of complying with

  section 13-64-403’s requirements by quoting the language verbatim

  and adhering to the unambiguous typographical requirements.

  Thus, under this standard, voluntariness would not be at risk

  merely because of a patient’s or representative’s difficulty in proving

  subjective misunderstanding of an agreement.

¶ 37   As well, the results would be consistent: if section 13-64-403’s

  requirements were met, the agreement would be valid. A statutory

  interpretation producing consistent results is preferable over one

  that produces inconsistent results. Cf. United States v. Dion, 752

  F.2d 1261, 1267 (8th Cir. 1985) (noting that one analytical test is

  “more desirable” because it leads to “more consistent results,”

  among other reasons); Sportwear Hosiery Mills v. Comm’r, 129 F.2d

  376, 379 (3d Cir. 1942) (“[W]e think that the construction offered by

  the Commissioner leads to more consistent results and presumably,

  therefore, is within the Congressional intent.”).




                                    18
¶ 38    Given all this, the General Assembly’s stated purpose —

  voluntariness of arbitration agreements — is better served by

  demanding strict compliance with section 13-64-403.

¶ 39    In sum, based on these three factors — plain language,

  context, and purpose — we conclude that section 13-64-403 calls

  for strict compliance. This conclusion accords with dicta in which

  the supreme court said that noncompliance with section 13-64-403

  “alone would render the agreement unenforceable.” Allen v.

  Pacheco, 71 P.3d 375, 381 (Colo. 2003); see also Evans, 926 P.2d at

  1228 (noting that an arbitration agreement “must comport with the

  other measures” in section 13-64-403). But this conclusion does

  not resolve the consequences of noncompliance.

       2.   Whether Lack of Bold-Faced Type Dooms the Agreement

                          a.   Absurd Results

¶ 40    Defendants’ argument that invalidating an agreement based

  on a lack of bold-faced type leads to an absurd result — because

  the arbitration agreement still contained the requisite wording and

  in a typographically prominent format — misses the mark.

¶ 41    Defendants begin with a false analogy: a strict compliance

  standard would invalidate otherwise adequate agreements where,


                                   19
  for example, the agreement substituted synonyms for statutorily

  required words. To avoid this absurd result, they continue, strict

  compliance must excuse minor departures from statutory

  requirements that could have had no practical effect on the reader.

  And according to defendants, this same rationale applies to the

  absence of bold-faced type: to avoid an absurd result, this anomaly

  too must be excused, even under a strict compliance standard,

  where it had no practical effect on the reader.

¶ 42   Not so fast. This analogy equates substituting a synonym in

  an agreement with failing to use a required typeface. But we know

  that by definition, substituting a synonym could not have any

  effect. See Webster’s Third New Int’l Dictionary 2320 (2002) (“A

  [synonym is a] word having the same meaning as another word.”).

  The opposite is true for the failure to use bold-faced type. See

  Caspe v. Aaacon Auto Transp., Inc., 658 F.2d 613, 616 (8th Cir.

  1981) (noting that bold-faced type allows language to “stand out

  and attract the reader’s attention”); Stauffer Chem. Co v. Curry, 778

  P.2d 1083, 1092 (Wyo. 1989) (acknowledging that bold-faced type

  allows words to “stand out prominently from surrounding words”).




                                    20
¶ 43   In the absence of any authority holding that strict compliance

  with a bold typeface requirement produces an absurd result, we

  reject defendants’ contention.

                            b.     Public Policy

¶ 44   Finally, defendants’ argument that Colorado’s “strong public

  policy in favor of arbitration[,]” Braata, Inc. v. Oneida Cold Storage

  Co., LLP, 251 P.3d 584, 590 (Colo. App. 2010), compels enforcing

  the arbitration agreement, even in the absence of bold-faced type,

  also falls short.

¶ 45   To begin, the HCAA recognizes this policy. But it also

  acknowledges that noncompliant agreements are inconsistent with

  public policy. See § 13-64-403(2) (“Any agreement . . . for binding

  arbitration . . . that conforms to the provisions of this section shall

  not be deemed contrary to the public policy of this state, except as

  provided in subsection (10) of this section.”); see also Braata, Inc.,

  251 P.3d at 587 (noting that the strong policy in favor of arbitration

  “does not trump statutory plain language”).

¶ 46   As well, the policy favoring arbitration is a tie-breaker used to

  “construe any ambiguities.” BFN-Greeley, LLC v. Adair Grp., Inc.,

  141 P.3d 937, 940 (Colo. App. 2006). But the discrepancies


                                     21
  between the arbitration agreement and the statutory requirements

  do not involve ambiguities. Nor do defendants cite, and we have not

  found in Colorado, authority holding that that the policy favoring

  arbitration tilts the playing field on which courts decide the

  threshold question of whether an arbitration agreement is valid.

  Thus, we conclude Colorado’s policy in favor of arbitration does not

  change our conclusion.

                             VI.   Conclusion

¶ 47   That the arbitration agreement entirely lacked bold-faced type

  is undisputed, and we have concluded that section 13-64-403

  demands strict compliance. Therefore, clear and convincing

  evidence shows that the agreement violated section 13-64-403(4).

  And invalidating it for the lack of bold-faced type neither creates an

  absurd result nor violates public policy favoring arbitration. Having

  invalidated the agreement on this basis, we need not determine

  whether the agreement is also invalid because of typographical

  errors and minor wording discrepancies.

¶ 48   The order of the trial court denying the motions to compel

  arbitration is affirmed.

       JUDGE ASHBY and JUDGE MÁRQUEZ concur.


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