‘Bait and switch’ victim escapes arbitration
You gotta love car salesmen. Those wacky tricksters are always up to something.
Just ask Amos Partain. The South Carolinian claims he agreed to buy one particular Nissan truck from Upstate Auto Group and ended up with another Nissan truck that was not nearly as nice.
Here’s how one happy shopping experience turned sour.
Partain was in the market for a truck in March 2006. So he went to Upstate Auto and there was greeted by Mikel Gadoran, one of the dealership’s many fine salesmen.
Partain had his eye on a 2006 Nissan truck. Partain and Gadoran got right down to the ancient rite of haggling over price, but Partain left the showroom without a deal.
As car salesmen typically do, Gadoran later phoned Partain and (Surprise!) informed him that Upstate Auto’s sales manager had authorized the sale at Partain’s offered price. So Partain returned to test drive the truck and give the go ahead for the purchase.
Gadoran called several days later and told Partain that his vehicle was ready.
Things went awry at that point. Partain showed up at Upstate Auto to complete paperwork and drive the truck home.
But as Upstate Auto employees walked Partain through the “vehicle introduction” process, he noticed that a truck bed extension previously affixed to the truck was missing. Upstate Auto employees allegedly assured Partain that the extension had been removed but would be reinserted, so he took the truck home.
Eventually, though, Partain came to the conclusion that the truck was not the same vehicle he had negotiated to buy and taken for a test drive.
When Upstate Auto refused Partain’s demand to make things right, he sued alleging a “bait and switch” in violation of the South Carolina Unfair Trade Practices Act.
Upstate Auto had an ace up its sleeve in that Partain’s purchase agreement included a broadly worded arbitration clause.
But on Monday, the South Carolina Supreme Court decided that the arbitration clause did not apply to Partain’s claim because Upstate Auto’s alleged actions constituted “illegal and outrageous acts” unforeseeable to a reasonable consumer in the context of normal business dealings.
“Partain cannot be held to have foreseen that Upstate Auto, after completing a sale, would substitute an entirely different vehicle in place of the truck he had agreed to purchase,” the court explained. “Moreover, Partain cannot be held to have contemplated that, in signing the arbitration clause, he was agreeing to arbitrate claims arising from allegedly fraudulent conduct.”
The court cautioned that its decision in favor of Partain should not be read as providing an “end run” around arbitration clauses.
It emphasized that where “parties have contractually agreed to arbitrate a claim, a party may not escape its commitment simply by presenting his claim as a tort. Only where the claim presented was clearly not within the contemplation of the parties will a court decline to enforce an otherwise proper arbitration agreement.” (Partain v. Upstate Automotive Group)
So Partain gets his day in court.
And, like spritely forest elves, car salesman around the world merrily go about their way, plotting new mischief.
— Pat Murphy
patrick.murphy@lawyersusaonline.com
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