Rigatti v. LPG USA

12 Mass. L. Rptr. 52
CourtMassachusetts Superior Court
DecidedJuly 14, 2000
DocketNo. 991080
StatusPublished

This text of 12 Mass. L. Rptr. 52 (Rigatti v. LPG USA) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rigatti v. LPG USA, 12 Mass. L. Rptr. 52 (Mass. Ct. App. 2000).

Opinion

Sosman, J.

Plaintiff John Rigatti has brought the present action pro se complaining that defendant LPG USA (“LPG”) sold him medical equipment that did not conform to the promises made by LPG’s agent, that LPG failed to conduct promised promotional and advertising efforts, that LPG failed to take the machine back as promised, and that LPG wrongfully reported his delinquencies in payment to credit agencies. Plaintiff brings counts for breach of contract (Count I), violation of G.L.c. 93A (Count II), and violation of G.L.c. 214, §1B. Defendant has moved.to dismiss on the ground that the Order Form for the equipment contained an arbitration clause requiring that arbitration be brought in Broward County, Florida. For the following reasons, the motion to dismiss is DENIED.

Facts

Plaintiff John Rigatti is a licensed physician with offices in Auburn, Leominster and Southbridge, Massachusetts. In the fall of 1997, he was contacted by one Claude Elias, who identified himself as an agent of defendant LPG. Elias sought to sell Rigatti a machine known as an “endermologie machine,” which was used to perform “body sculpture” on patients.1 Elias, on behalf of LPG, promised that LPG would conduct promotions and advertising and that, by way of that program, would direct “scores of customers” to Rigatti’s offices. Elias also promised that, if Rigatti were not satisfied with the endermologie machine, LPG would take the machine back.

On October 8, 1997, Rigatti and Elias signed an “Order Form” for Rigatti’s purchase of the endermologie machine. The total price of the machine and related parts was $32,000, plus a $300 shipping charge, for a “Balance Due C.O.D.” of $32,300. Above the signature line, there was a paragraph entitled “Acceptance and Approval,” which read as follows:

Buyer/Lessee hereby acknowledges that he has read, understands and has received a copy of this entire Agreement, including the terms and conditions on the back of this page and acknowledges that Buyer/Lessee has read the reverse side of this Agreement and agrees to be bound by these terms. These terms and conditions apply only if there is a sale and not if the product is leased.

The terms and condition on the reverse of the Order Form included the provision (2) that “(t]itle to the Product(s) purchased shall pass to Buyer immediately upon (a) delivery of the Product(s) and (b) payment in full of the Purchase Price by wire transfer, cashier’s check, certified check, cash (C.O.D.) or execution of a valid lease agreement.” There was also a provision making the agreement assignable by LPG but not assignable by Rigatti (21).

The terms on the reverse of the Order Form also required arbitration of “[a]ny controversy or claim arising out of or in any way between the Buyer and the Seller, or any cause or event, including, without limitation, to claims arising out of the sale of license of said Products, or any other claim, dispute or issue.” (16.) The arbitration clause further specified that the arbitration could be brought “only in Broward County, Florida.”

On the same day, October 8, 1997, Rigatti executed an LPG “License Agreement,” which allowed Rigatti to use the trademarks and service marks, techniques, and procedures connected with the endermologie machine, subject to various conditions. The License Agreement also contained an arbitration clause (7):

Any action brought involving the Arbitration and/or enforcement of this Agreement or any of the covenants of this Agreement shall be submitted to Arbitration pursuant to the rules of the American Arbitration Association (AAA) and shall be so brought only in a court [of] competent jurisdiction in and for Broward County, Florida and the parties agree to waive any claim relating to forum non conveniens.

A week later, on October 15, 1997, Rigatti entered into a Lease Agreement for the machine with an entity known as HPSC, Inc. located at 60 State Street, Boston, Massachusetts. The Lease Agreement identified the equipment supplier as “Laser Clinique of New En[53]*53gland.’’2 The lease term was fifty-one months, with monthly payments of $911.63. Massachusetts law was to govern, and the lessee (Rigatti) consented “to the jurisdiction of any State or Federal court located within Massachusetts.” HPSC was to be “the owner of and will hold title to the Equipment” (7), and Rigatti would have the option to purchase the machine for “fair market value” at the end of the lease term (12). The Lease Agreement further provided that, “(i]f you have entered into a purchase contract (“Supply Contract”) with any Supplier, you assign to us your rights under such Supply Contract, but none of your obligations (other than the obligation to pay for the Equipment).” (1.) HPSC disclaimed all warranties, and transferred to Rigatti “any warranties made by the manufacturer or Supplier under a purchase contract for the equipment.” ¶2. The Lease Agreement further provided that lease payments could not be withheld, reduced or set off on account of any claims concerning defects in the equipment or “any failures of the manufacturer or Supplier.” ¶ 13.

Rigatti alleges that he entered into the lease “(b)ased solely on the promises and representations made by Defendant’s agent, Claude Elias.” After receiving the machine, Rigatti alleges that LPG never sent him any patients and never did any promotions or advertising in Worcester County (where his offices were located). He tried the machine on some of his own patients “without positive results,” and he claims that LPG’s own “trainer” told him afterwards “that you would need a microscope to see any results.”

After going six months without any patients being sent to him, without any of the promised advertising or promotion, and without any successful results on his own patients, Rigatti contacted LPG and demanded that it take the machine back and refund the six months’ worth of payments that he had made to HPSC on the lease. LPG refused to do so.

On May 11, 1998, Rigatti sent LPG a G.L.c. 93A demand letter, demanding that it accept the return of the machine, indemnify him for any claim by HPSC, and pay him $10,000 “for my cost and loss of business opportunity.” LPG responded by letter dated June 18, 1998, stating that it was not LPG's policy to accept returns of equipment unless required by the manufacturer’s warranty. The letter also stated: “You elected to lease equipment from HPSC, Inc. As a result of your election to lease, the equipment was purchased and is now owned by HPSC.”

On June 9, 1998, HPSC sent Rigatti a default notice, including a warning that it would report all unpaid accounts “to your local credit bureau.” The complaint alleges that LPG, “through its agents,” caused the issuance of reports to credit agencies concerning the delinquencies in lease payments.

Discussion

LPG seeks dismissal of all claims based on the arbitration clause contained in its Order Form. Rigatti argues that the contract itself was induced by fraud and that he therefore should not be bound by any term in the contract. However, Rigatti's complaint makes no mention of any fraud with respect to the specific arbitration provisions of the contract. Unless there is fraud in the inducement with respect to the arbitration provision itself, a claim of fraud in the inducement with respect to the contract as a whole does not serve to avoid the arbitration clause. Quirk v. Data Terminal Systems, Inc., 379 Mass. 762, 765-68 (1980).

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Related

Quirk v. Data Terminal Systems, Inc.
400 N.E.2d 858 (Massachusetts Supreme Judicial Court, 1980)
Greenleaf Engineering & Construction Co. v. Teradyne, Inc.
447 N.E.2d 9 (Massachusetts Appeals Court, 1983)

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Bluebook (online)
12 Mass. L. Rptr. 52, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rigatti-v-lpg-usa-masssuperct-2000.