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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. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  2. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  3. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  4. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  5. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

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