Mataya v. Behm Motors, Inc.

• Decision Date: 25 March 1976
• Docket Number: Civ. A. No. 75-C-407.
• Parties: Harry A. MATAYA, Plaintiff, v. BEHM MOTORS, INC., et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

409 F. Supp. 65

Harry A. MATAYA, Plaintiff, v. BEHM MOTORS, INC., et al., Defendants.

Civ. A. No. 75-C-407.

United States District Court, E. D. Wisconsin.

March 25, 1976.

James R. Long, Appleton, Wis., for plaintiff.

Bruce M. Chudacoff, Appleton, Wis., for defendant, Behm Motors, Inc.

William A. Gigure, Manitowoc, Wis., for defendant, Thomas Terp.

James E. Shapiro, Milwaukee, Wis., for defendant, Bill Ennis.

Robert Hugh Flatley, Green Bay, Wis., for defendant, Vernon Thome.

MEMORANDUM DECISION AND ORDER

REYNOLDS, Chief Judge.

This is an action brought under the Motor Vehicle Information and Cost Savings Act ("the Act"), 15 U.S.C. §§ 1901-1991. Before the Court are motions by the plaintiff and certain defendants, as are described more fully herein.

Jurisdiction exists pursuant to 15 U.S.C. § 1989 which reads as follows:

"(a) Any person who, with intent to defraud, violates any requirement imposed under this subchapter shall be liable in an amount equal to the sum of—

"(1) three times the amount of actual damages sustained or $1,500, whichever is the greater; and

"(2) in the case of any successful action to enforce the foregoing liability, the costs of the action together with reasonable attorney fees as determined by the court.

"(b) An action to enforce any liability created under subsection (a) of this section, may be brought in a United States district court without regard to the amount in controversy * * *."

The requirements of the subchapter herein involved are set forth in §§ 1984 and 1988 thereof as follows:

§ 1984—"It is unlawful for any person or his agent to disconnect, reset, or alter the odometer of any motor vehicle with intent to change the number of miles indicated thereon."

§ 1988—"(a) Not later than 90 days after October 20, 1972, the Secretary shall prescribe rules requiring any transferor to give the following written disclosure to the transferee in connection with the transfer of ownership of a motor vehicle:

"(1) Disclosure of the cumulative mileage registered on the odometer.

"(2) Disclosure that the actual mileage is unknown, if the odometer reading is known to the transferor to be different from the number of miles the vehicle has actually traveled.

Such rules shall prescribe the manner in which information shall be disclosed under this section and in which such information shall be retained.

"(b) It shall be a violation of this section for any transferor to violate any rules under this section or to knowingly give a false statement to a transferee in making any disclosure required by such rules."

The rules referred to in § 1988 are set forth in 49 C.F.R. § 580.1, et seq.

The complaint alleges that the plaintiff Harry A. Mataya purchased from the defendant Behm Motors, Inc. ("Behm"), a 1972 Volkswagen automobile, receiving at the time of purchase a statement indicating that the odometer reading on the automobile was 28,124 miles, and that such reading was known to be the actual mileage. The complaint further alleges that Behm had previously purchased the automobile in question from defendant Thomas Terp ("Terp"), doing business as Terp's Calumet Auto Sales, and had received from Terp a statement indicating that the actual mileage in question was 28,032. The complaint further alleges that Terp purchased the automobile from defendant Bill Ennis ("Ennis"), doing business as Bill Ennis Motors, and that Ennis had delivered a statement to Terp indicating that the automobile's mileage was 27,815. The complaint also alleges that Ennis had purchased the automobile from defendant Vernon Thome ("Thome"), doing business as Thome Motor Company. Ennis is alleged to have an original odometer statement in his possession, ostensibly signed by defendant Thome, which states that the mileage on the vehicle in question is 27,101. Thome is alleged to have in his possession a putative copy of the aforesaid original statement in which the mileage indicated is 44,089. The complaint further alleges that Thome purchased the automobile from Van Boxtel Ford, Inc. ("Van Boxtel"), which certified the mileage thereon to be 43,335, and that Van Boxtel purchased the car from a former owner, one Charles D. Enders, who, at the time of transfer, certified that the mileage on the automobile was 43,335.

The complaint alleges that either Thome or Ennis is responsible for the odometer alteration here involved, and that with reasonable diligence Behm and Terp, by reason of mileage entries in an owner's warranty book present in the vehicle's glove compartment, would have had an opportunity to learn that the mileage indicated on the odometer was incorrect. Pursuant to § 1988, plaintiff seeks treble his alleged actual damages of $700 plus costs and reasonable attorney's fees.

Defendant Behm has answered the complaint, asserted a counterclaim of $64.50 against the plaintiff, cross-claimed defendants Terp, Ennis, and Thome for indemnity, and has moved for summary judgment on the complaint and on the cross-claims asserted against it by the other defendants.

Defendant Terp has answered the complaint, cross-claimed defendants Behm, Ennis, and Thome for indemnity, and answered the cross-claims asserted by defendant Thome.

Defendant Ennis has answered the complaint, cross-claimed defendant Thome for indemnity, and moved to dismiss the complaint for failure to state a claim or, in the alternative, for summary judgment.

Defendant Thome has answered and cross-claimed for indemnity against defendants Behm, Terp, and Ennis.

The plaintiff has moved to amend his complaint to more adequately state the jurisdictional basis of his cause of action.

Ruling on the pending motions in the reverse order in which they have been presented, plaintiff's motion to amend the complaint will be granted.

Defendant Ennis asserts three grounds in support of his motion to dismiss the complaint or, in the alternative, for summary judgment. Ennis first argues that the plaintiff is not a "transferee" to whom he can be liable under the terms of the statute. Ennis asserts that Terp is the only person to whom he transferred the car, and that the representations made at the time of that transfer were not made to the plaintiff or with any expectation that they would come to his knowledge, or with any belief or reason to believe that such representations would induce the subsequently purchasing plaintiff to act in the matter in question. This "privity" argument is unavailing. Actions for damages under the Act are in no way limited by such archaic notions of privity. To the contrary, liability extends to each and every malefactor in the chain of title: "* * The language in § 1989 `any person * * * shall be liable' indicates no intent to limit liability to the immediate seller of a motor vehicle, but to extend liability to and impose liability upon any person violating the law." Stier v. Park Pontiac, Inc., 391 F.Supp. 397, 401 (S.D. W.Va.1975).

As a corollary of his "transferee" argument, Ennis asserts that the motor vehicle in question was not sold to the plaintiff but rather to one Jeanie M. Mataya. Alternatively, Ennis argues that the plaintiff is not the real party in interest. By affidavit, the plaintiff has shown that he negotiated the purchase of the automobile in question but subsequently determined that the automobile would be placed in his wife's name for purposes of financing. Plaintiff asserts that he remains responsible for the debt incurred and that he is the actual purchaser of the automobile. The Act broadly defines "transfer" as a "change in ownership by purchase, gift, or any other means." 15 U.S.C. § 1982. The pertinent rules define "transferee" as "any person to whom the ownership in a motor vehicle is transferred by purchase, gift, or any means other than by creation of a security interest." 49 C.F.R. § 580.3. The statutory and administrative language evince an intent to expansively prescribe the class of persons to be protected by the Act and, correspondingly, the class of persons who may bring suit thereunder. The Court holds that the plaintiff is a "transferee" under the Act and the real party in interest for purposes of this proceeding.

Ennis finally argues that the 1972 Volkswagen he purchased from defendant Thome had a vehicle identification number of XXXXXXXXX, whereas the 1972 Volkswagen he sold to defendant Terp had a vehicle identification number of XXXXXXXXX. Accordingly, Ennis argues, he has no connection with the 1972 Volkswagen purchased by the plaintiff, which automobile had a vehicle identification number of 11229395. The Court is less than impressed with this numerical discrepancy; moreover, plaintiff asserts that he can show at trial that the vehicle purchased by Ennis from Thome and the vehicle sold by Ennis to Terp were one and the same. There being a dispute as to a material issue of fact, summary judgment is...