Heather N. Kesling v. Hubler Nissan, Inc.
997 N.E.2d 327
| Ind. | 2013Background
- Hubler Nissan advertised a 1996 Mitsubishi Eclipse on AutoTrader.com as a “Sporty Car at a Great Value Price.”
- Heather Kesling test-drove the car; it required a jump-start and idled roughly. Salesperson said it “would just need a tune-up” and had “been sitting for a while.”
- Kesling purchased the car “AS IS—NO WARRANTY,” then obtained inspections showing serious defects (loose tie rod, misrouted belt, blocked fuel-return line, evidence of engine swap) that made the car unsafe.
- Kesling sued under the Indiana Deceptive Consumer Sales Act (DCSA), sought treble damages under the Crime Victim’s Relief Act based on criminal deception, and asserted common-law fraud based on the salesperson’s tune-up statement.
- Trial court granted summary judgment for Hubler on all counts; Court of Appeals reversed in part. Indiana Supreme Court granted transfer.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ad phrase "Sporty Car at a Great Value Price" is a deceptive representation under the DCSA | Kesling: phrase implies the car is a good, at least safe, car for the price | Hubler: phrase is mere puffery/opinion, not a factual representation | Held: Phrase is puffery as a matter of law; not actionable under DCSA |
| Whether same ad supports criminal-deception-based recovery under Crime Victim's Relief Act | Kesling: ad amounted to a false/misleading public advertisement, enabling treble damages | Hubler: phrasing is non-factual puffery; criminal statute requires a factual representation and must be narrowly construed | Held: Puffery cannot sustain criminal-deception claim; summary judgment for Hubler affirmed |
| Whether salesperson’s statement that car "would just need a tune-up" can support common-law fraud | Kesling: statement was a factual representation in response to a condition inquiry and was false; she relied on it | Hubler: reliance defeated by "as-is" sale and post-purchase inspection; statement was non-actionable or not known false | Held: Triable issues exist — statement can be a material misrepresentation and sales agent may have had (constructive) knowledge; fraud claim survives summary judgment |
| Effect of "as-is" disclaimer on fraud claim | Kesling: disclaimer does not bar fraudulent-misrepresentation claims | Hubler: disclaimer insulates it from claims about condition | Held: "As-is" clause does not bar fraud claims based on affirmative misrepresentations or fraudulent nondisclosure; fraud claim not barred |
Key Cases Cited
- Tom-Wat, Inc. v. Fink, 741 N.E.2d 343 (Ind. 2001) (summary-judgment standard and review explained)
- Rice v. Strunk, 670 N.E.2d 1280 (Ind. 1996) (role of trial-court findings in appellate summary-judgment review)
- Martin Rispens & Son v. Hall Farms, Inc., 621 N.E.2d 1078 (Ind. 1993) (distinguishing puffery from factual warranty language)
- Wiseman v. Wolfe's Terre Haute Auto Auction, Inc., 459 N.E.2d 736 (Ind. Ct. App. 1984) ("road ready" as express affirmation of fact)
- Lawson v. Hale, 902 N.E.2d 267 (Ind. Ct. App. 2009) (duty to disclose material defects when buyer inquires; nondisclosure can be fraud)
- Klinker v. First Merchs. Bank, N.A., 964 N.E.2d 190 (Ind. 2012) (standard for civil recovery under Crime Victim’s Relief Act requires proving elements of underlying crime by preponderance)