Judges disagree over whether car ad implied drivability

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.