According to the version of the facts favoring Kesling,
against whom summary judgment was granted, in late 2007 Hubler inspected a 1996
Mitsubishi Eclipse and accepted it as a trade-in, then advertised it as a “Sporty
Car at a Great Value Price,” $2981.
Kesling soon thereafter saw the ad and went to the dealership. She test drove the Eclipse and noticed
trouble idling. She asked Hubler’s
salesperson if there was anything wrong with the vehicle, and he responded that
it had been “sitting for a while and probably just needed a tune-up.” She
bought it for $2322.88. In 2009, she
sued. In 2010, she obtained an
inspection report noting that the Eclipse was covered in dust and had only been
driven 44 miles since Kesling purchased it (based on a comparison of the sales
report with the odometer). The inspector
discovered numerous problems with the Eclipse, some of which could have caused
the vehicle to catch on fire or lose steering control. The inspector’s opinion was that the car was
unsafe to drive, and that many of the issues—including the safety
problems—would have been “obvious to anyone who would have inspected or
serviced the Eclipse at a dealership.”
The trial court granted summary judgment to Hubler,
reasoning that there was no representation that the car was safe to drive. The Deceptive Consumer Sales Act prohibits
representations that the subject of a consumer transaction has, among other
things, “performance, characteristics, accessories, uses, or benefits it does
not have which the supplier knows or should reasonably know it does not have”;
the Act is to be liberally construed to protect consumers.
The court of appeals agreed that a trier of fact could
reasonably infer from the “Sporty Car at a Great Value Price” that Hubler was implicitly
representing that the vehicle was safe to operate. Under the statutes, misrepresentations can be
implied, so long as the implication occurs orally, in writing, or by electronic
communication.
Given the meanings of “value” and “sporty,” a finder of fact
could reasonably determine that the ad “implied that the Eclipse was a good car
for the price and thus, at a minimum, safe to operate. How else could it have
‘great value’ and be a ‘sporty car’?”
The phrase went beyond “a bare ‘1996 Mitsubishi Eclipse for $2981’ and
thus can be read to mean more.” On
another aspect of her deception claim, the court commented, “[h]ad Hubler
merely listed the vehicle’s specifications and features, Kesling likely would
not have a viable case. … A fact-finder could reasonably conclude that [the
tagline] is an indication that it is a good car for the price and that, at a
minimum, it is safe to operate. A fact-finder could also reasonably conclude
that a used vehicle being advertised for $2981 with numerous mechanical issues
that could result in total loss of steering control or cause it to burst into
flames while driving is not a good car for the price.” Comment: while “great” is generally puffery,
there are situations where the claims are so out of whack with reality that
courts are willing to find claims of this sort false. Dangerous items are more likely to fall into
that category.
Hubler argued that the Act didn’t apply to
nondisclosure. But it does apply to
representations (including implied ones), so there was a jury issue. There was also enough evidence to go to a
jury as to whether the Eclipse was safe to operate when Kesling bought it.
A dissent argued that “Sporty Car at a Great Value Price” didn’t
convey anything at all about drivability or safety. “Sporty” just meant having a sports car
style, and “Great Value Price” just meant “low relative to the vehicle’s market
value.” (But what’s the market value of a car that might catch on fire while you
drive it?) The dissent maintained that “this
very generic advertising phrase is widely regarded as typical used-car-sales
puffery that conveys virtually nothing about the particular vehicle to which it
is attached,” and was also “devoid of content relative to the vehicle’s
operating status.”
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