consumers have “constant real-time access
to information about the places, goods,
people, firms, and contracts around
them,” such intervention is outmoded. 60
Even in Broemmer’s day, the right to contract would have been best protected by
enforcing the arbitration agreement as
written. Because when “the answer to the
question of whether a contractual term
was within the reasonable expectations of
the contracting parties may just depend on
the judge who is hearing the case,”61
neither certainty nor consistency prevails.
Certainty, consistency and judicial
economy are among the reasons supporting national and state policies favoring
arbitration and its “essential virtue of
resolving disputes straightaway.”62 As
Justice Martone noted at the time of
Broemmer, the “Federal Arbitration Act, 9
U.S.C. § 2, is just like Arizona’s, A.R.S. §
12-1501.”63 Both provide that arbitration
agreements “shall be valid, irrevocable,
and enforceable, save upon such grounds
as exist at law or in equity for the revocation of any contract.” The difficulty of
reconciling Broemmer with the language
of and public policy behind those statutes
may explain why so many scholars view
the decision as an academic conundrum.
Section 211( 3) Since
Since Broemmer, Section 211( 3) has continued to germinate in Arizona case law,
though courts have generally returned to
applying the text of the Restatement
(Second) provision, rather than comment f
alone. For example, Harrington v. Pulte
Home Corp.64 set out a seven-factor test,
taken in part from comment f, under which
courts may determine whether a party had
reason to believe that the non-drafting
party would not have accepted the agreement if he or she had known that the agreement contained a particular term.65 Recent
decisions have analyzed both Broemmer
and that seven-factor test to determine
whether arbitration agreements in the noninsurance context were beyond plaintiffs’
In the recent unpublished Day v.
Kindred Hosps. W., LLC,67 the plaintiff,
Gloria Day, at 80, was at the opposite end
of the age spectrum from Ms. Broemmer,
but similarly recalled signing paperwork
including an arbitration agreement during
a time of considerable emotional stress.68
There, the Arizona Court of Appeals noted
that it was aware of no authority “for the
proposition that a patient or his representa-
tive is not bound by an arbitration provi-
sion simply because he was unfamiliar with
alternative dispute resolution and did not
pause to read the arbitration agreement
before signing.”69 Still, the court left to the
trial court to decide the question posed by
Section 211( 3) and Broemmer—whether
mandatory arbitration provisions in a
provider–patient agreement were beyond a
plaintiff’s reasonable expectations.70 It
found genuine issues of material fact exist-
ed and remanded the case to superior court
for an evidentiary hearing regarding
whether the agreement was a contract of
adhesion and, if so, whether the arbitration
provisions were within Ms. Day’s reason-
1. BRUCE W. FRIER& JAMESJ.
WHITE, THE MODERN LAW OF
CONTRACTS 207 (2005)
2. The professors may have taken
one liberty with the facts:
Nowhere does the record of
published decisions indicate
that Ms. Broemmer was “
visibly disturbed” while filling out
3. 840 P.2d 1013 (Ariz. 1992).
4. See, e.g., JOHN PHILIP DAWSON
ET AL., CONTRACTS: CASES AND
COMMENT 676 (2008);
CHRISTOPHER R. DRAHOZAL,
CASES AND PROBLEMS 107
(2002); DANIEL V. DAVIDSON
ET AL., BUSINESS LAW:
PRINCIPLES AND CASES IN THE
LEGAL ENVIRONMENT 176
5. Broemmer, 840 P.2d at 1017.
Contracts Under Revised
Article 2, 75 WASH. U. L.Q.
315, 335 (1997).
7. Broemmer v. Otto, 821 P.2d
204 (Ariz. Ct. App. 1991).
8. Broemmer, 840 P.2d at 1014.
10. Id. at 1018 (Martone, J.,
12. See id. at 1015.
15. Broemmer v. Otto, 821 P.2d
17. Id. at 206.
18. Id. at 207.
20. Id. at 208.
21. Broemmer, 840 P.2d at 1017.
25. Id. (citing Stanley Henderson,
Contractual Problems in the
Enforcement of Agreements to
Arbitrate Medical Malpractice,
58 VA. L. REV. 947, 995
(1972)). The Court of Appeals
relied on this article, as well, in
determining that the agreement was an adhesion contract.
Broemmer v. Otto, 821 P.2d
26. Broemmer, 840 P.2d at 1017.
27. Id. at 1018.
29. Id. at 1019.
31. Id. at 1020.
33. Id. at 1021-22.
34. Id. at 1017-18.
35. Id. at 1018 (emphasis in
37. Emphasis added.
38. RESTATEMENT (SECOND) OF
CONTRACTS § 211 cmt. f.
39. See Darner Motor Sales, Inc. v.
Universal Underwriters Ins.
Co., 682 P.2d 388, 394-96
40. See, e.g., id.; Broemmer, 840
P.2d at 1018; Harrington v.
Pulte Home Corp., 119 P.2d
1044, 1050 (Ariz. Ct. App.
2005). Cases on Section
211( 3) were counted using
Westlaw searches. When
Professor White conducted
a similar analysis for a 1997
article, he found that of the
approximately 43 cases that
had interpreted Section 211( 3)
at that time in the United
States, 25 were from Arizona.
White, supra note 6, at 324-
41. White, supra note 6, at 323.
42. Darner Motor Sales, 682 P.2d
at 394; see also Broemmer, 840
P.2d at 1018.