Lurvey v. Phil Long Ford, Inc.
| Decision Date | 30 September 1975 |
| Docket Number | No. 75--057,75--057 |
| Citation | 37 Colo.App. 11,541 P.2d 114 |
| Parties | Charles L. LURVEY, Sr., and Peggy J. Lurvey, Plaintiffs-Appellants, v. PHIL LONG FORD, INC., a Colorado Corporation, Defendant-Appellee. . II |
| Court | Colorado Court of Appeals |
Charles J. Haase, Colorado Springs, for plaintiffs-appellants.
Bennett and Wills, Charles F. Bennett, Colorado Springs, for defendant-appellee.
Plaintiffs appeal the dismissal of their action for fraud in the sale of a motor vehicle to plaintiffs. We reverse and remand for a new trial.
On September 24, 1973, Charles and Peggy Lurvey, the plaintiffs, purchased a 1969 Plymouth Valiant from Phil Long Ford, Inc., the defendant. All negotiations were conducted by Charles Lurvey and Millard Clothier, a salesman-employee of the defendant. Lurvey had purchased many cars from Clothier during the prior twelve to fifteen years; these transactions apparently had been satisfactory to both parties.
Plaintiffs visited defendant's used car lot on September 22, 1973, where they sought out Clothier and asked to see a low-mileage car. They were shown a 1969 Valiant which, according to Lurvey, 'looked practically like it just came out of the showroom.' The odometer indicated that the vehicle had traveled 6,054 miles.
Plaintiffs took the vehicle over the weekend and drove it fairly extensively. During this time Lurvey checked the radiator, engine oil, upholstery, tires and exterior of the vehicle. The car seemed to be in perfect condition and had not, in his opinion, been driven more than the distance indicated on the odometer.
On September 24, 1973, plaintiffs returned to defendant's lot and concluded the purchase. At that time, they were given an odometer disclosure form, partially filled out and signed by Clothier, stating that the vehicle had been driven a total of 6,218 miles. Plaintiffs drove the vehicle until November 1973, during which time they had no complaints concerning its performance. Sometime during that month the vehicle was stolen and was never recovered. Plaintiffs filed a claim with their insurance carrier. An insurance adjuster, while investigating the claim, discovered in the possession of the defendant an odometer disclosure statement executed by the previous owners, declaring that the vehicle had been driven a total of 106,054 miles. The insurance carrier refused to honor the full amount of the claim.
Plaintiffs filed suit against defendant, seeking compensatory and punitive damages, costs, and attorney fees. In their complaint they based the action on common law fraud and on the alleged violation by defendant of 15 U.S.C. § 1981 Et seq. In a trial to the court, plaintiffs asked the court to take judicial notice of § 42--6--201 Et seq., C.R.S.1973, or in the alternative to permit an amendment of the complaint, apparently seeking to include a claim under that statute. At the time of the request, plaintiffs' counsel represented to the court that the state and federal statutes were virtually identical with respect both to matters of proof and the relief that could be obtained. Although the court reserved ruling on plaintiffs' request, it appears from the record that the parties and the court proceeded throughout the trial on the assumption that the prerequisites to recovery under the state and federal statutes were identical.
At the conclusion of the plaintiffs' case-in-chief, defendant moved for dismissal of the action pursuant to C.R.C.P. 41(b)(1). The court concluded that plaintiffs had prima facie established that the disclosure statement was false, that defendant knew or should have known that that statement was false, and that plaintiffs had relied on the statement. It was apparently the court's opinion that under both the federal and state statutes, plaintiffs were also required to prove that the reliance was reasonable and justifiable and held that they had not fulfilled this burden. For this reason, it granted defendant's motion to dismiss.
The principal issue presented on appeal is whether in an action for damages pursuant to 15 U.S.C. § 1981 Et seq., and § 42--6--201 Et seq., C.R.S.1973, plaintiffs have a duty to show reasonable and justifiable reliance on the disclosure statement. Since it is our decision that this ruling of the trial court must be reversed, we have no occasion to consider the other questions raised by plaintiffs.
In general, for a plaintiff to recover from the defendant on a claim of fraud he must establish, Inter alia, that he relied on the misrepresentation of the defendant to his own detriment and that this reliance was reasonable under the circumstances of the case. Colorado Jury Instructions 19:1; Colorado Springs v. Wight, 44 Colo. 179, 96 P. 820; Sellar v. Clelland, 2 Colo. 532. Although the reporting requirements under the federal and state statutes do in fact differ, and although the relief provided under the federal statute is in addition to any state remedies, the effect of the two statutes on the common-law requirement of reliance is identical. Therefore, as to this issue we need not distinguish one statute from the other.
Both statutes require a used car dealer to furnish to the purchaser a written statement that includes the odometer reading at the time of transfer or, if the odometer reading is known to the dealer to be different from the number of miles the vehicle has actually traveled, a written statement that the actual mileage is unknown. 15 U.S.C. § 1988; § 42--6--205(1)(b), C.R.S.1973. The Colorado statute further requires that the dealer present to the buyer a sworn affidavit executed by the previous owner of the vehicle including the same information. Section 42--6--205(1)(a), C.R.S.1973. Violation of these provisions is specifically declared unlawful under the federal statute, 15 U.S.C. § 1988, and penal sanctions follow from violation of the Colorado provisions. Section 42--6--207, C.R.S.1973. In addition, any dealer who intentionally fails to make the required disclosure or fails to make an accurate statement is liable in a civil action brought by the purchaser for three times the amount of actual damages sustained or fifteen hundred dollars, whichever is greater, plus costs and attorneys fees. 15 U.S.C. § 1989; § 42--6--208, C.R.S.1973. The federal statute includes a provision that it shall not be deemed to affect any relevant state laws or to exempt any person from complying with those laws, except to the extent that they are inconsistent with the federal requirements. 15 U.S.C. § 1991.
In an action for fraud in a suit alleging misrepresentations...
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...may be proved by circumstantial evidence. Elk River Assocs. v. Huskin, 691 P.2d 1148, 1154 (Colo.App.1984); Lurvey v. Phil Long Ford, Inc., 541 P.2d 114, 116 (Colo.App.1975). Thus the alleged violations of the CCPA stem from the same alleged deceptive conduct, that is, the failure to make a......
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...Dorr, 40 Colo.App. 74, 574 P.2d 97 (1977). 34. 35 Colo.App. 349, 532 P.2d 770(1975). 35. Id. at 532. 36. Lurvey v. Phil Long Ford, Inc., 37 Colo.App. 11, 541 P.2d 114, 117 (1975). 37. Supra, note 3. 38. Supra, note 33. 39. Rule 301, Federal Rules of Evidence. 40. 1 Weinstein's Evidence, pp.......
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