Big-O Tires, Inc. v. Santini
| Decision Date | 11 September 1992 |
| Docket Number | Nos. 91-38,91-39,BIG-O,s. 91-38 |
| Citation | 838 P.2d 1169 |
| Parties | TIRES, INC.; Cheyenne Tire Center, Inc.; and Scott Stone, Appellants (Defendants), v. Margherita SANTINI and Cowboy Dodge, Inc., Appellees (Plaintiffs). Margherita SANTINI, Appellant (Plaintiff), v.TIRES, INC.; and Cheyenne Tire Center, Inc., Appellees (Defendants). |
| Court | Wyoming Supreme Court |
Peter K. Michael and William M. McKellar of Boley & McKellar, P.C., Cheyenne, for Big-O Tires, Inc., Cheyenne Tire Center, Inc., and Scott Stone.
Jane A. Villemez of Graves, Santini & Villemez, P.C., Cheyenne, for Margherita Santini.
Ernest W. Halle, Cheyenne, for Cowboy Dodge, Inc.
Before MACY, C.J., and THOMAS, CARDINE, URBIGKIT * and GOLDEN, JJ.
This appeal, as its major subject of attention, addresses whether the jury was suitably instructed in a defective retread tire case where the mix of causes of action included strict products liability and negligence, as well as an assertion of deceit and misrepresentation. The jury awarded a prorated $144,000 verdict for products liability and, in a separate verdict, awarded $50,000 for deceit. The products liability judgment was paid and this appeal addresses only the judgment awarded for deceit. Some of the defendants insist the instructions permitted the jury to award the plaintiff a double recovery of damages for her injuries. These same defendants also discern an abuse of discretion in the district court's apportionment of the award of plaintiff's costs among the various defendants. The plaintiff contends the district court erred in granting a motion for judgment notwithstanding the verdict in favor of one defendant on the deceit and misrepresentation cause of action.
We reverse the order granting the judgment notwithstanding the verdict, but otherwise affirm the judgments of the district court.
In Case No. 91-38, appellants, Big-O Tires, Inc. (Big-O) and Cheyenne Tire Center, Inc. (Cheyenne Tire), 1 pose these issues:
I. Whether a plaintiff may be awarded double damages for personal injury--once based on product liability theories, and a second time based on a fraud theory[.]
II. Whether a district court abuses its discretion when it allows a defendant to pay only 3% of the plaintiffs costs, even though the jury has found that the defendant shared 38.5% of the fault ascribed to the defendants who went to trial[.]
In response to these assertions of error, appellee, Margherita Santini (Santini) poses these queries:
I. Whether a plaintiff is entitled to recover damages for her personal injuries due to defendants' fraud, where the jury was required to segregate plaintiff's damages due to fraud on a separate verdict form, and where the jury was specifically instructed not to duplicate damages in compensating plaintiff.
II. Whether the trial court properly distributed costs among defendants.
Appellee, Cowboy Dodge, Inc., responds with this query:
Whether or not the district court abused its discretion in its allocation of the costs to be paid among the several defendants[.]
In Case No. 91-39, Santini states this single issue:
Whether substantial evidence in the record supports the jury's verdict against Scott Stone for deceit and misrepresentation.
And in response, Scott Stone (Stone), who was the President of Cheyenne Tire at the time Santini made her purchase, contends:
Whether the district court correctly rendered a judgment notwithstanding the verdict in favor of defendant Scott Stone.
The initial 1989 complaint alleged Santini's purchase of two "Proform" tires from Cheyenne Tire. Five months and about six thousand miles later, while driving in the eastbound lane of I-80, west of Cheyenne, Wyoming, the tread separated from the carcass of one of these tires, wrapped around the axle and caused Santini to lose control of the car. Santini was thrust sideways into a tractor-trailer truck which she was passing at the time the tire failed. The car rolled on to its top and slid down the highway until coming to repose. Santini was seriously injured in the accident. Her complaint stated causes of action for strict products liability, violation of the Wyoming Consumer Protection Act, breach of warranty, negligence, negligent supervision, punitive damages and, of particular significance to this appeal, deceit and misrepresentation.
We shall recite the evidence relating to the deceit and misrepresentation claim from a perspective most favorable to Santini. Its primary pertinence in this appeal is whether we must sustain Santini's claim that the district court erroneously granted judgment notwithstanding the verdict for Stone on the deceit and misrepresentation claim. Santini testified she was enticed into Cheyenne Tire by an advertisement which touted "Proform" tires. The advertisement did not identify the tires as being retreads, or remanufactured tires, and Santini claimed this was done intentionally. While she was at Cheyenne Tire, she was first shown more expensive tires, but when she asked about the "Proforms" the salesperson showed them to her with the representation they were "good, new tires." No mention was made to her that they were retreads or remanufactured tires and her sales receipt also only listed them as "Proforms." Santini associated the product name "Proform" with "performance," and said she would not have gone to Cheyenne Tire, nor would she have bought the tires in question, if she had known they were retreads. Stone did not sell Santini the tires at issue, but he did prepare the advertisement which prompted Santini to shop at Cheyenne Tire. He also trained his sales personnel to avoid using the terminology "retread" or "recap" in selling retreaded or remanufactured tires. In addition, expert testimony established that the tire carcass used in the defective tire was of a brand which many remanufacturers would not use in the retreading business because they are known to be subject to the very sort of failure which occurred in this instance.
Originally, Big-O, Cheyenne Tire, Stone, and Norva Corporation (the manufacturer of the defective tire) were named as defendants. Norva Corporation reached a settlement with Santini before trial. On July 20, 1990, the district court entered an order permitting joinder of Cowboy Dodge, Inc. Cowboy Dodge had serviced Santini's car on July 19, 1988. The service receipt indicates the car was brought in for service because the "left front wheel [was] noisy when turning," and the work performed on the car by the dealership was described as, "adj. all eng. mounts & rotate tires--front tire (bad)." Santini claimed that she did not see the notation on the invoice and was not given any other notice of the problem with the tire, which had now been rotated to the rear axle of her car where a defect would be less noticeable.
As their first issue, Big-O and Cheyenne Tire challenge instructions which they assert permitted the jury to award Santini a double recovery: one based on the theory of fault and a second based on the theory of deceit and misrepresentation. The contentions of both parties were summarized in these instructions to the jury:
Margherita Santini is the Plaintiff in this case. She has brought this action against Defendants Big O Tires, Inc., Cheyenne Tire, Inc., Scott Stone, and Cowboy Dodge, Inc., to recover for injuries that she sustained on August 8, 1988, when the left rear tire on her vehicle failed at highway speed on Interstate 80, west of Cheyenne. Specifically, Mrs. Santini contends that the tread and belt separated from the tire carcass and wrapped around the axle, causing the wheel to stop turning. As a result, Mrs. Santini alleges that her vehicle veered out of control, struck the semi tractor-trailer that she was passing and overturned. Mrs. Santini further contends that the failed tire was a retread which was sold to her as a new tire, and that she was not advised that the tire was a retread until after the accident.
Defendant Cheyenne Tire, Inc., is the franchised Big O Tire dealer which sold two tires to Mrs. Santini on March 9, 1988. Defendant Scott Stone was co-owner of Cheyenne Tire, Inc. at the time of this sale. Defendant Big O Tires, Inc., is a franchisor of retail tire stores, including Cheyenne Tire, Inc.
Mrs. Santini alleges that the failed tire was defective when Cheyenne Tire, Inc., sold it to her and that the Cheyenne Tire, Inc., salesperson failed to advise her that it was a retread. She further contends that Cheyenne Tire, Inc., and its owner, Scott Stone, committed deceit and misrepresentation by advertising and promoting Proform brand tires as new, when, in fact, they were retreaded, Acutread brand tires. Mrs. Santini also contends that Cheyenne Tire, Inc., breached the implied warranty of merchantability by selling a tire which was not fit for its intended use.
Mrs. Santini further contends that Big O Tires, Inc., as the franchisor of the local Big O Tire Store, is responsible for the wrongdoings of its franchisee. She further contends that Big O Tires, Inc., is liable to her for its failure to properly supervise the advertising and sales practices of its local franchisee.
Defendant Cowboy Dodge, Inc., serviced Mrs. Santini's car three weeks prior to the accident and discovered a bad tire. Mrs. Santini contends that Defendant Cowboy Dodge, Inc., is liable to her for failing to warn her that her tire was bad and created a dangerous condition, by rotating the tire to the rear of the vehicle where the defect was less noticeable, and for failing to correct this hazard.
Mrs. Santini contends that as a result of these actions by Defendants, she suffered severe injuries and damage when the tire failed and caused her vehicle to wreck.
Finally, Mrs. Santini contends that Big O Tires, Inc., Cheyenne Tire, Inc., and Scott Stone should be assessed punitive damages for their willful and...
To continue reading
Request your trial
-
Schaub v. Wilson
...v. Rissler & McMurry Co., 903 P.2d 1015, 1018 (Wyo.1995); Carlson v. Carlson, 888 P.2d 210, 216 (Wyo.1995); Big-O Tires, Inc. v. Santini, 838 P.2d 1169, 1176 (Wyo.1992); Coulthard v. Cossairt, 803 P.2d 86, 93 (Wyo.1990); and Stauffer Chemical Co. v. Curry, 778 P.2d 1083, 1105 Schaub argues ......
-
Halliburton Co. v. Claypoole
...the district court abused its discretion in reducing the jury's award of general damages against Halliburton. See Big-O Tires, Inc. v. Santini, 838 P.2d 1169, 1175 (Wyo.1992). Consistent with this holding, we need not further consider the jury's award of punitive Therefore, we hold that und......
-
Smyth v. Kaufman
...a duty upon counsel to object to any claimed inconsistency or mistake in the verdict before the jury is dismissed. Big-O Tires, Inc. v. Santini, 838 P.2d 1169, 1175 (Wyo.1992). Failure to object to any substantive defect in the verdict when it is returned to the trial court is a waiver of t......
-
John Q. Hammons Inc. v. Poletis
...the facts permit the drawing of more than one inference, it is for the jury to choose which will be utilized. Big-O Tires, Inc. v. Santini, 838 P.2d 1169, 1176-77 (Wyo.1992). Since a judgment as a matter of law deprives the party opposing the motion of a determination of the facts by a jury......