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Terms in this set (104)

•Subdivision owners filed suit against developer
•Contended: Its defective construction exposed them to personal injury from radon gas
•Developer, Richmond, sought to enforce an arbitration provision in the sales agreements.
•Owners counter that arbitration provision was unconscionable
•West Virginia S. Ct. HELD: The sales agreements were adhesive and procedurally unconscionable
•Arbitration process in Purchase Agreement was unduly oppressive
•It exculpated Richmond from its misconduct.
•Impaired the plaintiffs' rights to pursue remedies for their losses.
•Process either implicitly or explicitly limited ability of plaintiffs to fairly pursue remedies
-For their injuries and damages caused by radon gas in their new homes.
•Agreement states "Richmond disclaims liability, and [Plaintiff] expressly waives any and all claims for property and/or personal injury or other economic loss resulting from . . . radon gas[.]"
•Agreement also says that Richmond is not "liable for any special, indirect or consequential damages"
-Which exculpate Richmond from damages for
•Pain and suffering
•Intentional and negligent infliction of emotional distress
•Punitive damages
•Agreement also says Richmond is not liable for diminution of value of the home as a result of misconduct.
•Agreement categorically attempts to eliminate various statutory and common law rights
-Including plaintiffs' warranties und the Magnuson-Moss Act and "all warranties of fitness, merchantability and habitability."
•Here arbitration provision part-and-parcel of broad exculpatory contract that ran solely to benefit developer
•Such a contract is not enforceable in a court.
•Richmond does not get to achieve the purpose sought through the arbitration process which is
-Namely complete exculpation from any liability.
•NOTE: The fact that radon was expressly mentioned in the agreement indicates, it seems, that the developer had concerns of a lawsuit concerning possible radon in the area and his desire not to be liable concerning necessary/desired testing of radon and its impacts prior to the development of the site.