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Law School Case Brief

Broemmer v. Abortion Servs. - 173 Ariz. 148, 840 P.2d 1013 (1992)


Generally speaking, there are two judicially imposed limitations on the enforcement of adhesion contracts or provisions thereof. The first is that such a contract or provision which does not fall within the reasonable expectations of the weaker or "adhering" party will not be enforced against him. The second -- a principle of equity applicable to all contracts generally -- is that a contract or provision, even if consistent with the reasonable expectations of the parties, will be denied enforcement if, considered in its context, it is unduly oppressive or "unconscionable."


Plaintiff Melinda Kay Broemmer went to defendant Abortion Services of Phoenix wherein she was asked to complete three forms, one of which was the agreement to arbitrate, which included language that “any dispute arising between the Parties as a result of the fees and/or services" would be settled by binding arbitration and that "any arbitrators appointed by the AAA [American Arbitration Association] shall be licensed medical doctors who specialize in obstetrics/gynecology.” Clinic staff made no attempt to explain the agreement to Plaintiff before or after she signed, and did not provide Plaintiff with copies of the forms.

Plaintiff underwent the abortion procedure; however, as a result of the procedure, she suffered a punctured uterus that required medical treatment. Plaintiff filed a malpractice complaint. Defendants moved to dismiss, contending that the trial court lacked subject matter jurisdiction because arbitration was required. The trial court granted summary judgment judgment to the defendants. Plaintiff's motion to vacate, quash or set aside the order, or to stay the claim pending arbitration, was denied. The court of appeals held that although the contract was one of adhesion, it was nevertheless enforceable because it did not fall outside Plaintiff's reasonable expectations and was not unconscionable. Plaintiff sought further appellate review.


Was the contract in question enforceable, notwithstanding the fact that it was a contract of adhesion?




The Supreme Court of Arizona held that the agreement to arbitrate was unenforceable as against Plaintiff because it was beyond Plaintiff’s reasonable expectations to expect to arbitrate her medical malpractice claims, which included waiving her right to a jury trial, as part of filling out three forms. The Court found that there was no conspicuous or explicit waiver of the fundamental right to a jury trial, or any evidence that such rights were knowingly, voluntarily or intelligently waived. The Court determined that Plaintiff’s waiver of such fundamental rights was beyond the reasonable expectations ofP.

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