Pennelope Rivers (plaintiff) brought this tort action against defendants BMW of North America, Inc. (“BMW-NA”), Charles Evans BMW, Inc. (“Charles Evans”), and others, alleging intentional frauc and deceit, reckless misrepresentation, and suppression of materia facts, 1 for selling her a new car which had been damaged by acid rail and repainted. Specifically, the complaint alleged that in “February 1990, Plaintiff purchased a 1990 BMW 535i automobile . . . from th( Defendant Charles Evans BMW, Inc. . . . [which vehicle was] distrib uted by the Defendant BMW of North America, Inc.[; that at] al times prior to the sale of the vehicle to the Plaintiff, the Defendants represented that the vehicle was a brand new vehicle . . . [but tha such] . . . representations by the Defendants were false and the De fendants knew them to be false at the time of their making.” Alterna tively, defendants made false statements “without knowledge of th< true facts . . . [and] recklessly without regard to ascertaining the trutl or falsity of those representations.” 2 Defendants “failed to disclosi the fact that this vehicle had been damaged [in transit by acid rain and repainted prior to selling it to [her].” As a result of defendants failure to disclose this material fact, plaintiff “financed the purchase price of approximately $30,000. ...” She claimed as damages th “[diminution in value of the car,” as well as punitive damages, attor ney fees, and the costs of litigation. In their respective answers, de *881 fendants admitted only that BMW-NA distributed the vehicle plaintiff purchased from Charles Evans and denied all other allegations. After discovery, defendants jointly moved for summary judgment “on all remaining counts of Plaintiffs complaintf, . . . contending that they were] entitled to judgment as a matter of law both by the merger clause and by the transit and/or storage damage disclosure contained in the Buyer’s Order and Bill of Sale.”
In support of their motion, defendants relied on the following undisputed facts: when the car plaintiff purchased as “new” arrived in the United States its exterior paint and finish had been marred “by exposure to environmental conditions during transit and/or storage[; that, at the direction of BMW-NA,] the affected surfaces were refinished according to factory specifications by BMW trained technicians, using BMW approved and installed equipment [at the BMW-NA Vehicle Preparation Center in Brunswick, Georgia, before shipment to a dealership; and that plaintiff] did not ask anyone at Charles Evans whether any repairs were performed on the Automobile, despite the fact that the possibility of transit and/or storage damage was expressly disclosed in the Buyer’s Order.” Defendants argued that plaintiff had affirmed the contract after knowledge of the alleged fraud by failing to rescind the contract. Plaintiff responded, urging that factual issues existed “as to whether the disclaimer and the buyer’s order negates Defendants’ affirmations that the car was new, whether the Plaintiff failed to exercise due diligence as a matter of law and whether the Plaintiff adopted the disclaimer.”
The trial court granted defendants’ motion for summary judgment, concluding that plaintiff had failed to dispute the factual assertions of the defendants and that due to the disclosure of the possibility of transit damage contained in the Buyer’s sales order “no misrepresentation occurred as a matter of law.” The trial court further concluded that plaintiff “failed to exercise due diligence in ascertaining the alleged falsity . . .” of the description of the car. This appeal followed. Held:
1. In related enumerations, plaintiff contends the trial court erred in “ruling as a matter of law that [her claims] are barred . . . [and that she] failed to exercise due diligence.”
Traditionally, where a buyer is induced to enter into a contract for the sale of goods by the fraud of the seller, upon discovery of the fraud he has an election of remedies. See
Bill Spreen Toyota v. Jenquin,
In the case sub judice, BMW-NA and Charles Evans each relief on the following language contained in the sales agreement signed h plaintiff to show that no misrepresentation was made at all becausi no material fact was concealed: “5. Purchaser acknowledges that ther< may have been certain transit and or storage damage to the vehicb sold by the Seller herein [defendant Charles Evans] and Purchase: hereby releases the Seller for any and all claims arising out of sucl transit damage and or storage damage. Exceptions are noted on iron of order under SPECIAL NOTICE.” Applying
Gen. Motors Corp. v. Green,
In the case sub judice, however, neither the defendant dealershi Charles Evans nor the defendant distributor BMW-NA sought to disj close the fact that BMW-NA had actually repaired transit damag while at the same time extending a warranty which covered negli gence in those repairs. Instead, this sales agreement sought to dig claim all warranties, express or implied, employing in bold text th language “SOLD AS IS.” Nevertheless, defendants submit as conch sive proof that no material fact was concealed the circumstance the this sales agreement mentions on the reverse side in the least conspic uous print employed the bare possibility that transit or storage dan age might have been sustained. However, unlike the provision in
Get
*883
Motors Corp. v. Green,
2. The trial court further erred in concluding that the evidence showing plaintiff was aware of a problem with the paint job shortly after she accepted the vehicle demonstrated as a matter of law that she failed to exercise due diligence on her own behalf. There is evidence of record (from a similar case against BMW-NA in Alabama) where plaintiff testified that when she took the car back to Charles Evans, “[t]hey told me that the car had not been repainted.”
“It may be considered an intrinsic quality of a car sold as new that it has been neither damaged nor used to any significant extent. Accord,
Rustin Oldsmobile v. Kendricks,
In the case sub judice, we are shown no evidence of record tha BMW-NA took any steps to alert the dealership that acid rain repair! had actually been performed. Nor is there evidence of any procedan whereby the dealership inquired whether foreseeable transit damag< had actually been sustained. “The acid rain damage to the origina finish had been painted over. [If done properly, the repair would hav< been undetectable to the untrained eye.] ... It cannot be said tha due diligence in buying an automobile would require a prospectivi purchaser to make such an inspection as possibly would have dis closed this latent damage. [Cit.] This would seem to be especially tru< where, as here, the purchaser does inquire about the [subsequent!: observed flaws] in the automobile’s finish and is told that [her car ha< not been repainted].” Macon Chrysler-Plymouth v. Sentell, 179 Ga App. 754 (1), 755, supra. In the case sub judice, there is “ample evi dence to raise a jury question as to whether the defendant [distributor, BMW-NA wilfully concealed what it] knew, or [whether the deal ership, Charles Evans,] recklessly failed to ascertain the truth o falsity, of the representation it made as to the [intrinsic quality] o the merchandise sold.” Bill Spreen Toyota v. Jenquin, 163 Ga. App 855, 858 (3), 860, supra.
3. In order to prevail on summary judgment, the defendant-mo vant is required to pierce the allegations of the complaint or other wise show the absence of a triable issue as to an essential element o the nonmovant’s case and must further establish as a matter of la\ that the plaintiff could not recover under any theory fairly draw from the pleadings and the evidence. See
Thompson v. Huckabe Auto Co.,
Judgment reversed.