Most states have local statutes which have been put in place to protect consumers from deceptive and unfair business practices. However, courts must be careful to balance the needs of protecting consumers with the needs of sellers to market their wares. Just such a balance was considered in a recent case in Indiana in which Heather Kesling bought a used car from Hubler Nissan, Inc. The car was allegedly advertised as being a “Sporty Car at a Great Value Price,” but after buying it, Kesler discovered that the car had extensive mechanical problems which rendered the vehicle unusable. As a result, Kesler sued Hubler Nissan for fraud and violation of the Indiana Deceptive Consumer Sales Act.
Hubler Nissan moved for summary judgment which the trial court granted. Kesling appealed the decision and the appellate court reversed the trial court’s ruling. According to the appellate court, the statement that the car was a “Sporty Car at a Great Value Price” could implicitly represent that “it is a good car for the price and that, at a minimum, it is safe to operate.” The appellate court therefore ruled in Kesling’s favor, after which the case then moved to the Indiana Supreme court which reversed part of the ruling and remanded part of the ruling.
Hubler Nissan responded by petitioning to have the case moved to the Indiana Supreme Court. The Indiana Legal Foundation and Barnes & Thornburg LLP filed an amicus brief with the court in support of the petition for transfer. In the amicus brief, they argued that the assertion that the car was a “Sporty Car at a Great Value Price” was nothing more than puffery, meaning that it was an expression of the seller’s opinion and was not meant to be construed as fact. To punish Hubler Nissan for making such a statement, the amicus brief argued, would be to impose undue hardship on Indiana businesses in the future, as it would inhibit all forms of advertising.
The Supreme Court agreed that to rule in Kesling’s favor would be to force sellers to list only a product’s “name, rank, and serial number” in order to avoid a similar lawsuit. The Court concluded that sales puffery is not actionable as fraud, stating that, “[w]hile advertisements may not be deceptive, they need not refrain from any expression of the seller’s opinion.”
In its ruling, the Indiana Supreme Court further noted that Hubler Nissan’s advertisement “was puffing and not any representation of fact, and thus the advertisement was not ‘deceptive’ under the Indiana Deceptive Consumer Sales Act (IDCSA); whether a car is ‘sporty’ was a subjective assertion of opinion and could not reasonably be ascribed any significance as a representative of a car’s state of repair or drivability, and ‘great value price’ could not reasonably be understood to have any greater significance than the comparable terms ‘great price’ or ‘priced to sell’.”
The Indiana Supreme Court also pointed out that, under the Indiana Consumer Sales Act, the failure to disclose information does not constitute a representation of fact. As a result, the Court could not find Hubler Nissan guilty of fraud under that Act. This is not the case in most states such as Illinois where if a car dealer knowlingly fails to disclose or conceals material facts it can be liable under the Illinois consumer fraud act.
You can view the Court’s opinion here.
Our Chicago autofraud and Lemon law attorneys near Schaumburg bring suit for auto dealer fraud and other car dealer scams such as selling rebuilt wrecks as certified used cars or misrepresenting a car as being in good condition when it is rebuilt wreck or had the odometer rolled back. Super Lawyers has selected our DuPage, Kane and Cook County auto-fraud, car dealer fraud and lemon law lawyers as among the top 5% in Illinois. We only collect our fee if we win or settle your case. For a free consultation call us at our toll free number (877) 990-4990 or contact us on the web by clicking here.