ILNews

Judges disagree over whether car ad implied drivability

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Court of Appeals was divided on whether an Indianapolis car dealership was entitled to summary judgment on a buyer’s lawsuit that made Indiana Deceptive Consumer Sales Act, Crime Victims Relief Act, and fraud claims.

Heather Kesling purchased a 1996 Mitsubishi Eclipse from Hubler Nissan for a little more than $2,300. She saw an advertisement describing the car as a “Sporty Car at a Great Value Price.” She test drove the car and saw it was not idling correctly. She asked the salesman if anything was wrong with the car, and he said it probably just needed a tune up.

A little more than a year later, she filed her lawsuit. She had it inspected more than two years later. The inspector noted the car was covered in dust, only had 44 more miles on the odometer as compared to the sales order, and that the car had numerous problems that he believed should have been discovered by the dealer during an inspection. The inspector believed the car was unsafe to drive.

The trial court granted Hubler’s motion for summary judgment.

In Heather N. Kesling v. Hubler Nissan, Inc., 49A02-1111-CT-1031, Senior Judges John Sharpnack and Carr Darden found there to be a genuine issue of material fact as to whether Hubler made a representation in its advertisement that the car had performance, uses or benefits that it didn’t have and the dealer knew or should have known the car did not have those characteristics. The majority looked at the phrase “Sporty Car at a Great Value Price” and concluded a reasonable fact-finder could determine that Hubler implied the Eclipse was a good car for the price, and thus at a minimum, that it was safe to drive.

Judge Ezra Friedlander dissented, believing the advertisement did not run afoul of the Deceptive Consumer Sales Act and that the majority’s view is “simply unreasonable.” In his view, the phrase used conveys “virtually nothing” about the car to which it is attached and devoid of content relative to the car’s operating status.

The Court of Appeals also found issues of material fact on the fraud and Crime Victims Relief Act claims and remanded for further proceedings.

 

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. IF the Right to Vote is indeed a Right, then it is a RIGHT. That is the same for ALL eligible and properly registered voters. And this is, being able to cast one's vote - until the minute before the polls close in one's assigned precinct. NOT days before by absentee ballot, and NOT 9 miles from one's house (where it might be a burden to get to in time). I personally wait until the last minute to get in line. Because you never know what happens. THAT is my right, and that is Mr. Valenti's. If it is truly so horrible to let him on school grounds (exactly how many children are harmed by those required to register, on school grounds, on election day - seriously!), then move the polling place to a different location. For ALL voters in that precinct. Problem solved.

  2. "associates are becoming more mercenary. The path to partnership has become longer and more difficult so they are chasing short-term gains like high compensation." GOOD FOR THEM! HELL THERE OUGHT TO BE A UNION!

  3. Let's be honest. A glut of lawyers out there, because law schools have overproduced them. Law schools dont care, and big law loves it. So the firms can afford to underpay them. Typical capitalist situation. Wages have grown slowly for entry level lawyers the past 25 years it seems. Just like the rest of our economy. Might as well become a welder. Oh and the big money is mostly reserved for those who can log huge hours and will cut corners to get things handled. More capitalist joy. So the answer coming from the experts is to "capitalize" more competition from nonlawyers, and robots. ie "expert systems." One even hears talk of "offshoring" some legal work. thus undercutting the workers even more. And they wonder why people have been pulling for Bernie and Trump. Hello fools, it's not just the "working class" it's the overly educated suffering too.

  4. And with a whimpering hissy fit the charade came to an end ... http://baltimore.cbslocal.com/2016/07/27/all-charges-dropped-against-all-remaining-officers-in-freddie-gray-case/ WHISTLEBLOWERS are needed more than ever in a time such as this ... when politics trump justice and emotions trump reason. Blue Lives Matter.

  5. "pedigree"? I never knew that in order to become a successful or, for that matter, a talented attorney, one needs to have come from good stock. What should raise eyebrows even more than the starting associates' pay at this firm (and ones like it) is the belief systems they subscribe to re who is and isn't "fit" to practice law with them. Incredible the arrogance that exists throughout the practice of law in this country, especially at firms like this one.

ADVERTISEMENT