ILNews

Car ad not deceptive, but salesperson’s statements keep fraud claim alive

Back to TopCommentsE-mailPrintBookmark and Share

Car dealers, like many businesses, often “puff up” their advertisements to make their cars more attractive to potential buyers, and this puffery can’t be the basis of deception or fraud claims, the Indiana Supreme Court ruled Tuesday. But a woman’s fraud claim against an Indianapolis car dealer will continue.

Heather Kesling sued Hubler Nissan Inc. for fraud and deception after the 1996 Mitsubishi Eclipse she purchased from the dealer that was advertised as a “Sporty Car at a Great Value Price” ended up needing significant work, rendering it undrivable. Before she bought the car, it needed jumped and idled roughly, but the salesperson told Kesling that it just needed a tune up and had been sitting for a while. She discovered the problems with the car after buying it. An expert who inspected the car two years later claimed the dealership should have discovered those problems when accepting the car as a trade in.

She sued under the Indiana Deceptive Consumer Sales Act and sought treble damages because the ad was criminal deception. The representation that the car just needed a tune up was fraudulent, she argued, because the defects should have been apparent during the trade-in inspection. A split Indiana Court of Appeals granted summary judgment for the dealer.  

“Here, each part of ‘Sporty Car at a Great Value Price’ can reasonably be taken only as puffing … . ‘Sporty’ simply cannot reasonably be ascribed any significance as a representation of a car’s state of repair or drivability,” Justice Loretta Rush wrote. “Similarly, ‘Great Value Price’ cannot reasonably be understood to have any greater significance than the comparable terms ‘great price’ or ‘priced to sell.’”

“Since puffing is merely a statement of opinion … it cannot be a representation of fact—and thus, cannot be ‘deceptive’ under the DCSA,” she continued. And because “Sporty Car at a Great Value Price” expresses Hubler’s puffed opinion, rather than representing any objective fact, it cannot be a basis for a criminal deception claim.

The fraud claim, though, survives because stating a car “would just need a tune-up,” in the face of actual or constructive knowledge that the car had far more serious problems, does represent fact – and therefore may be the basis of a fraud claim when a seller gives it as a knowingly incomplete answer to a buyer’s specific question, the court held. Also, there is a genuine issue of fact as to Kesling’s reliance on the salesperson’s statements.

The lawsuit, Heather N. Kesling v. Hubler Nissan, Inc., 49S02-1302-CT-89, is remanded for further proceedings consistent with the opinion.

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

ADVERTISEMENT