Does “Puffery” Amount to Actual Deception? Let’s see what the Indiana Supreme Court found:
In 2007, Defendant Hubler Nissan, Inc. placed an ad on AutoTrader.com for a 1996 Mitsubishi Eclipse. Underneath Seller’s Comments stated … Sporty Car at a Great Value Price. Kesling saw the ad and went to see and test-drive the car. The salesperson immediately took them to the car but had to jump-start it before it could be driven. The car idled roughly and the salesperson stated the car need a tune-up. and Kesling paid a total price of $2,322.88 for the car. She also signed an acknowledgement that the car was sold AS IS–NO WARRANTY. Immediately after completing the purchase, Kesling went to an auto-parts store to have the car’s computer-diagnostic codes read. But the car’s diagnostic codes could not be retrieved, so Kesling took the car to another dealership and an independent mechanic for detailed diagnoses that showed extensive problems well beyond needing a tune-up. Kesling sued Hubler, alleging that advertising the car as a “Sporty Car at a Great Value Price”, because the ad also constituted criminal deception. She also alleged that the salesperson’s representation that the car “would just need a tune-up” was fraudulent. The trial court granted Hubler’s motion for summary judgment on all counts reasoning that “Sporty Car at a Great Value Price” was “simply puffing” and made no substantive representation; that there was no evidence that the defects found by the expert witness were present when the car was sold; and that signing the “as-is” disclaimer and immediately having the car inspected after purchase showed Kesling did not rely on Hubler’s statement about the car.
On appeal, Judge Friedlander concluded that as a matter of law, “Sporty Car at a Great Value Price” was “typical used-car-sales puffery” and “devoid of content relative to the vehicle’s operating status.” The Indiana Supreme Court agreed that “Sporty Car at a Great Value Price” is classic puffery, which was fatal to Kesling’s deception claims. The Supreme Court agreed and found that each part of “Sporty Car at a Great Value Price” can reasonably be taken only as puffing, akin to “top quality”, and not as a representation of any fact. Whether a car is “sporty” is a subjective assertion of opinion, not fact, commonly applied in advertising to anything from Porsches to pickup trucks. Moreover, we believe the term refers to a car’s styling or design, not its drivability, who would dispute that an old MG roadster or Ford Mustang is a “sporty car,” even if it is totally un-roadworthy and needs complete restoration? “Sporty” simply cannot reasonably be ascribed any significance as a representation of a car’s state of repair or drivability. Similarly, “Great Value Price” cannot reasonably be understood to have any greater significance than the comparable terms “great price” or “priced to sell.” Reasonable buyers cannot expect a seller to admit their price is “significantly inflated,” and therefore cannot take seriously an assurance that the price is a “bargain,” “below market,” or otherwise a “Great Value.” Both terms, whether read together or in isolation from each other, are mere puffery as a matter of law.
However, stating that a car “would just need a tune-up,” in the face of actual or constructive knowledge that it had far more serious problems, does represent a fact—and therefore may be the basis of a fraud claim when a seller gives it as a knowingly incomplete answer to a buyer’s specific question. Accordingly, we affirm the trial court’s grant of summary judgment in favor of Hubler as to Kesling’s Deceptive Consumer Sales Act and Crime Victim’s Relief Act claims; reverse its grant of summary judgment as to Kesling’s fraud claim; and remand to the trial court for further proceedings not inconsistent with this opinion. 997 N.E.2d 327