discussing lower court’s ruling, affirmed on other grounds, that “by conditioning its collision protection on factors such as sobriety, [the insurer] had attempted to inject a fault element into its insurance coverage,” contrary to public policy as expressed in Colorado’s no-fault act
How later courts described this case
- discussing lower court’s ruling, affirmed on other grounds, that “by conditioning its collision protection on factors such as sobriety, [the insurer] had attempted to inject a fault element into its insurance coverage,” contrary to public policy as expressed in Colorado’s no-fault act
- stating that, to support a finding of unconscionability, there must be "contract terms which are unreasonably favorable" to the party who overreached
- noting that an arbitration provision may be found unconscionable
- refusing to enforce rental agreement provision that insurance coverage does not apply while vehicle is being operated by drunk driver, finding such provision unconscionable
Written by the judges who cited it.
The opinion
LOHR, Justice,
specially concurring:
I concur in the result reached by the majority, but write separately to emphasize what I understand to be the limited applicability of the unconscionability/reasonable expectations doctrine announced in the majority opinion.
The facts here establish that M.L.G. had attempted to limit the applicability of the physical damage waiver while purposefully and successfully attempting to prevent its customer Davis from learning of that limitation. An examination of the rental agreement signed by Davis demonstrates that the trial court’s finding.that the reverse side is almost impossible to read because of the color and size of print is not hyperbole. The trial court found that the design of the form established a “concerted effort” by M.L.G. to discourage persons from reading the back of the form. The rental agent testified that if a customer *993 selected the physical damage waiver alternative, the agent would explain that the customer was not liable for physical damage to the car. The agent had never observed any of her customers reading the reverse side of the agreement. The exceptions to the physical damage waiver were not called to Davis’ attention, although certain other contractual provisions were pointed out to him specifically. Under these circumstances, I agree that it would be unconscionable to enforce the exceptions to the physical damage waiver provision printed on the reverse side of the rental agreement against Davis.
I express no opinion, however, as to the extent to which the doctrines concerning either unconscionability or the reasonable expectations of the contract parties, relied upon by the majority, can be or should be applied to resolve other contract disputes, including other disputes involving consumer contracts. Certainly, these are not typical modes of analysis to be utilized in resolving most if not all contract disputes, and they should not be used, as the majority uses them here, as the starting point for analyzing any such dispute.
I am authorized to say that Justice RO-VIRA joins in this special concurrence.