Com. v. Colonial Motor Sales, Inc.

• Decision Date: 12 May 1981
• Citation: 420 N.E.2d 20,11 Mass.App.Ct. 800
• Parties: COMMONWEALTH v. COLONIAL MOTOR SALES, INC. et al. 1
• Court: Appeals Court of Massachusetts

Page 20

420 N.E.2d 20

11 Mass.App.Ct. 800

COMMONWEALTH v. COLONIAL MOTOR SALES, INC. et al. ¹

Appeals Court of Massachusetts, Hampden.

Argued March 11, 1981.

Decided May 12, 1981.

Merwyn J. Burstein, Springfield, for defendants.

John T. Montgomery, Asst. Atty. Gen., for the Commonwealth.

Before HALE, C. J., and GREANEY and KASS, JJ.

KASS, Justice.

State ² and Federal ³ statutes establish civil liability for tampering with the odometer of a car. Upon the Commonwealth's motion for summary judgment, Colonial Motor Sales, Inc. (Colonial), and its principal officer, Bruce Milton, were held liable for setting back, or dispensing false information about, the mileage readings on nineteen cars sold by Colonial. In consequence, judgment entered ordering injunctive relief and assessing $28,500 in damages. ⁴

The motion judge made his summary judgment decision on the basis of a supporting affidavit by an investigator for the Consumer Protection Division of the Department of the Attorney General and a counter affidavit by the defendant Milton. Whether the opposing affidavits placed in dispute any material facts requires analysis of each of the nineteen transactions because those transactions had varying characteristics. It is necessary first to isolate the conduct which will subject a person to liability under the State and Federal statutes.

General Laws c. 266, § 141, roughly parallels section 409(a) of the Motor Vehicle Information and Cost Savings Act, 15 U.S.C. § 1989(a), in that civil liability attaches to what the used car trade calls an "odometer spinback." But differences exist which explain why the Attorney General chose to rest his complaint on both. ⁵ The State statute imposes liability upon whoever "alters the odometer of any motor vehicle with the intent to change the number of miles indicated thereon." G.L. c. 266, § 141. Intent to defraud need not be proved; such an intent is required only with regard to driving a car "knowing that the odometer of ... (the) vehicle is disconnected (or) nonfunctional." Id. The Federal statute imposes liability only on a violation (of the Motor Vehicle Information and Cost Savings Act) committed "with intent to defraud." 15 U.S.C. § 1989(a) (1976). Something less than an odometer spinback, however, constitutes an infraction of the Federal act. If the transferor of an automobile knows the odometer reading "to be different from the number of miles the vehicle has actually travelled," he is to disclose that "the actual mileage is unknown." 15 U.S.C. § 1988(a)(2). See also regulations under the statute appearing at 49 C.F.R. §§ 580.4 and 580.6 (1973). ⁶

The easiest case for the plaintiff under the mileage disclosure laws, therefore is one where the defendant has himself set the odometer back. No intent to defraud need be shown and even if it were (as under the Federal statute), the very fact of the spinback warrants an inference of intent to defraud. Delay v. Hearn Ford, 373 F.Supp. 791, 795 (D.S.C.1974). ⁷ Klein v. Pincus, 397 F.Supp. 847, 851 (E.D.N.Y.1975). Fraud is implied in the absence of an explanation. Duval v. Midwest Auto City, Inc., 425 F.Supp. 1381, 1386 (D.Neb.1977), aff'd, 578 F.2d 721 (1978). How many miles a car has travelled has a substantial bearing on the market value of a car. In the case of a car with high mileage dealers may deduct as much as forty percent from the "blue book" value. Jones v. Fenton Ford, Inc., 427 F.Supp. 1328, 1337 n. 20 (D.Conn.1977). A car dealer, therefore, who sets an odometer back does so precisely for the purpose of inducing a customer to part with more money than the car is worth. See Gopen v. American Supply Co., --- Mass.App. ---, ---, ^a 407 N.E.2d 1255 (1980); Fenton Ford, Inc., supra at 1334; Restatement (Second) of Torts §§ 525, 527 & 529 (1977).

In its supporting affidavit the Commonwealth, as to each of the nineteen cars, described the date of purchase by Colonial, the make and model of the car, its vehicle identification number, and the odometer reading when Colonial acquired the car. The affidavit then described the date of sale by Colonial, the transferee and the odometer reading (lower) at the time of sale. Attached to the affidavit, as to each car, were the bill of sale or odometer disclosure statement given to Colonial and the bill of sale or odometer statement which Colonial gave when it sold the car. Had it not been responded to, the Commonwealth's affidavit would have adduced facts sufficient to entitle it to summary judgment against Colonial. ⁸ The affidavit sets forth an unexplained reduction in the odometer readings of each of the cars when it left the ownership of Colonial. How this came about need not be proved. The fact of the odometer tampering itself makes out a case unless the defendant establishes it was none of his doing or that there was some explanation. See Delay v. Hearn Ford, 373 F.Supp. at 795; Klein v. Pincus, 397 F.Supp. at 851. Compare Mataya v. Behm Motors, Inc., 409 F.Supp. 65, 69-70 (E.D.Wis.1976).

Colonial and Milton did, however, respond with an affidavit which says variously, depending on the car, that no odometer alteration occurred, that the mileage on receipt of the car by Colonial was wrong, or that someone else tinkered with the meter. As to ten of the nineteen transactions, the defendants concede that the vehicles were sold with odometer readings that were lower than at the time of purchase but make assertions which they claim raise issues of material fact as to whether they are liable under the statutes. There is no alternative to analyzing the transactions one by one and applying the principles laid down in Community Natl. Bank v. Dawes, 369 Mass. 550, 340 N.E.2d 877 (1976). We shall refer to cars by assigning them numbers based on the order in which they appear in the Commonwealth's affidavit, but so as to treat cars in groups which raise common issues, we shall not deal with them sequentially.

Group One.

Cars as to which the affidavits do not materially dispute that the sale mileage was lower than the purchase mileage.

Car No. 1 (a 1975 Plymouth Duster): The Commonwealth's affidavit and documents show mileage in (i. e., on acquisition by Colonial) of 17,656 and mileage out (i. e., on sale by Colonial) of 13,000. The defendants' affidavit states that Colonial then repurchased the vehicle and that "if any odometer tampering had been done, it was done by West Springfield Chrysler Plymouth." This response raises no issue of material fact. There is no suggestion that following repurchase the odometer was set to the correct mileage; the violation appears to have continued. The affidavit says nothing about the circumstances of the repurchase, which may have had nothing to do with false mileage. It does the defendants no good to state that somebody else changed the meter. On the Commonwealth's documents, the odometer was spun back while Colonial owned the car. A counter affidavit must set forth specific facts and "may not rest upon the mere allegations or denials of his pleading." Mass.R.Civ.P. 56(e), 365 Mass. 825 (1974). The unelaborated and undocumented statement that its customer changed the odometer, in the face of an odometer certificate signed by Milton which appears in the Commonwealth's affidavit, does not rise above a mere allegation or move sufficiently beyond the defendants' pleading. See John B. Deary, Inc. v. Crane, 4 Mass.App. 719, 723-724, 358 N.E.2d 456 (1976). The material offered in the attempt to raise a dispute is insubstantial. See Firemen's Mut. Ins. Co. v. Aponaug Mfg. Co., 149 F.2d 359, 362 (5th Cir. 1945); Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir. 1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 54 (1976). Summary judgment was correctly entered as to this car.

Car No. 3 (a 1973 Buick Century): The Commonwealth's affidavit and documents show a mileage in of 62,570 and a mileage out of 38,000. The defense affidavit says "the file (presumably relating to this car) was not returned by the (p) laintiff, and so no response can be given ... at the present time." This places no material fact in dispute. The defendants describe no effort to obtain exculpatory information. Summary judgment was correctly entered as to this car.

Car No. 5 (a 1975 Mercury Monarch): The Commonwealth's affidavit and documents show a mileage in of 49,206 and a mileage out of 19,560. The defense affidavit places responsibility on an employee (one Jackman, of whom more needs to be said later), claims Milton's signature does not appear, "and if it does appear, it is not a genuine signature." This puts no material fact in issue for the reasons discussed in the case of Car No. 1. Summary judgment was correctly entered as to this car.

Car No. 7 (a 1974 Plymouth Fury): The Commonwealth's affidavit and documents show a mileage in of 92,000 and a mileage out of 38,897. The defense affidavit, without support for the assertion, says that the mileage on the bill of sale "is obviously in error" and that the affiant "believe(s)" the odometer statement annexed to the Commonwealth's affidavit "would show the mileage close to that at which the vehicle was sold." The unsupported and unelaborated allegation suffers the infirmity discussed in connection with Car No. 1 and statements of belief carry no weight in an affidavit in support of summary judgment. Stetson v. Selectmen of Carlisle, 369 Mass. 755, 763 n.12, 343 N.E.2d 382 (1976). Hartford Acc. & Indem. Co. v. Millis Roofing & Sheet Metal, Inc., --- Mass.App. ---, ---, ^b 418 N.E.2d 645 (1981). Summary judgment was correctly entered as to this car.

Car No. 10 (a 1975 Plymouth Duster): The Commonwealth's affidavit and documents show a mileage in of 23,375 and a mileage out of 13,810. The defense affidavit offers an explanation based on belief (see discussion under Car No. 7) and, therefore, there is no issue of material fact. Summary judgment was correctly entered.

Car No. 14 (a 1973 Chevrolet Impala): The...