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

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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.

 

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  1. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  2. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  3. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  4. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  5. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

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