Parrott v. Carr Chevrolet, Inc.

• Decision Date: 30 September 1998
• Citation: 965 P.2d 440,156 Or.App. 257
• Parties: Mark PARROTT, Appellant--Cross-Respondent, and Charles Forshey, Plaintiff, v. CARR CHEVROLET, INC., an Oregon corporation, Respondent--Cross-Appellant. C93-0873CV; CA A88512.
• Court: Oregon Court of Appeals

Page 440

965 P.2d 440

156 Or.App. 257

Mark PARROTT, Appellant--Cross-Respondent and Charles Forshey, Plaintiff, v. CARR CHEVROLET, INC., an Oregon corporation Respondent--Cross-Appellant.

C93-0873CV; CA A88512.

Court of Appeals of Oregon.

Argued and Submitted Nov. 14, 1997.

Decided Sept. 30, 1998.

Kathryn H. Clarke, Portland, argued the cause for Appellant--Cross-Respondent. With her on the briefs were Maureen Leonard and Michael C. Baxter.

Barbee B. Lyon, Portland, argued the cause for Respondent--Cross-Appellant. With him on the briefs was Tonkon, Torp, Galen, Marmaduke & Booth.

Before De MUNIZ, P.J., DEITS, ^* C.J., and HASELTON, J.

De MUNIZ, Presiding Judge.

Plaintiff ¹ brought this action alleging, inter alia, a violation of the Unlawful Trade Practices Act (UTPA), ORS 646.608 et seq., ² arising from defendant's sale of a used 1983 three-quarter ton Chevrolet Suburban truck ³ to plaintiff. The jury returned a verdict in favor of plaintiff, awarding $11,496 in compensatory damages and $1 million in punitive damages. On defendant's motion for remittitur, the trial court reduced the punitive damage award to $50,000 and entered judgment. Plaintiff appeals the reduction in punitive damages, and defendant cross-appeals the judgment in favor of plaintiff. We reverse on the appeal and affirm on the cross-appeal.

Because the jury returned a verdict in plaintiff's favor, we view the evidence and the inferences that reasonably can be drawn from it in the light most favorable to plaintiff. Greist v. Phillips, 322 Or. 281, 285, 906 P.2d 789 (1995). The Suburban that plaintiff purchased from defendant was a trade-in from Conrad Myers, who brought the truck to defendant on Saturday, December 12, 1992. Defendant sent the Suburban to its budget lot, which displayed a sign advertising "quality checked used cars." The lot has older vehicles with at least 100,000 miles that are sold "as-is." The Suburban was priced at $5,995 and was on defendant's lot for about two weeks before plaintiff came to the lot. Plaintiff, a truck driver and school bus driver, wanted to purchase a three-quarter ton truck. The Suburban had been polished, cleaned and serviced, and the salesman confirmed that it had just been detailed. Plaintiff saw that the air cleaner was missing but was assured it would be replaced. Plaintiff noticed that the engine was painted blue and assumed that it had been replaced; he noticed that the radiator had been replaced and looked new, as did the batteries, tires, and upholstery. He commented, "It looks like quite a lot of recent work was done on this vehicle," to which the salesman replied, "Yeah."

After considering over a weekend, plaintiff decided to purchase the truck. Defendant gave plaintiff $3,100 for a trade-in on his two vehicles, and plaintiff signed a credit agreement through defendant for the balance. On December 30, plaintiff signed the sales documents to complete the transaction and took the Suburban.

The sales documents included a "Buyer's Guide," a "Buyer's Order," a "Special Disclaimers and Conditions" form and a combined vehicle sales document. All of the documents contained "as-is" clauses disclaiming all warranties. The Buyer's Order included a typewritten section stating that the dealership had not inspected the vehicle and had no knowledge of the vehicle's condition, the accuracy of the odometer or Department of Environmental Quality (DEQ) certification. Plaintiff signed next to the disclaimers. The Order also contained a pre-printed section required by federal law regarding the odometer reading. That section stated that the odometer read 100,608 "and to the best of my knowledge * * * it reflects the actual mileage of the vehicle[.]" The Disclaimers form stated that the contracting parties had visually inspected the vehicle and that there were no apparent deficiencies in the installation of emission control devices. When plaintiff pointed out that that provision was inconsistent with the missing air cleaner and refused to continue with the transaction without a written promise to replace the missing part, defendant's finance manager gave plaintiff a "we owe" statement for the air cleaner.

Shortly after the purchase, plaintiff noted that the Suburban was missing all of its DEQ equipment, not just the air cleaner. Through library research, plaintiff learned that the engine had a distributor coil that did not belong to the year and engine he thought that he had bought. Plaintiff later learned that, in fact, the 1983 Suburban had a 1981 engine. Plaintiff noticed that the vehicle identification numbers (VIN) were not on the door, transmission, or glove box. On January 14, plaintiff took the truck to DEQ and learned that it did not have the required DEQ equipment. In fact, it would not have been possible to bring the Suburban into DEQ compliance because of the difference in age between the vehicle and the engine.

Plaintiff did his own title search and learned through the Department of Motor Vehicles (DMV) that the Suburban had undergone previous damage in California and had a title brand, which indicated that it had been severely damaged, totaled, or salvaged. Plaintiff testified that the truck had been stolen at some previous time in California and stripped of its parts. When plaintiff's insurer learned of the branded title, it would no longer insure the vehicle. Although plaintiff did not know at the time he bought the Suburban that the white lines between the odometer numbers indicated tampering, a mileage discrepancy appeared on the replacement title.

After learning of the missing equipment from DEQ, plaintiff complained to defendant. At various times, defendant's employees told plaintiff that he had bought the car "as-is" and repair was his problem; that the Suburban's engine did not require DEQ equipment; that he should not worry about DEQ because the registration was good for another two years; and that defendant would replace the DEQ equipment and engine with junkyard parts. Negotiations for a replacement vehicle ended when plaintiff and defendant could not agree on a vehicle to trade, and defendant's salesman yelled at plaintiff that the Suburban was unfixable, that defendant would not fix it, and that plaintiff would have to be happy with getting his down payment back or learn to live with it. Defendant told plaintiff that he could not have his trade-ins back because they had been sold, although, in fact, both had not. ⁴ Plaintiff rejected defendant's offer to refund the $3,100 because he would not be reimbursed for the value of his trade-ins ⁵ or the loan and insurance fees of $200 to $400.

In January, plaintiff wrote a letter to and telephoned Wallace Preble, one of defendant's owners and chairman of the board. Defendant's attorney replied by letter "rescinding" the transaction and stating that plaintiff had to bring the vehicle back to defendant by February 5, 1993 "so that we can fully reimburse you for what you paid for the vehicle." Preble testified that the response was intended to "bring [plaintiff] to a negotiating point." Plaintiff phoned the attorney who, plaintiff testified, became argumentative and threatened to sue for possession of the Suburban. When plaintiff demanded 85 percent of any profit that defendant may have made on selling his trade-ins, according to plaintiff's interpretation of the terms of the "Buyer's Guide," the attorney promised to get back to him. The attorney did not call back.

At trial, plaintiff presented evidence from which the jury could have found that defendant knew of the condition of the Suburban when Myers traded it. The only document Myers had presented as proof of ownership was a "Notice of Transaction Submitted." That document had a stamped expiration date of 7-16-92 and an obviously altered handwritten expiration date of 7-16-94. Plaintiff's experts testified that a car dealership would not have accepted the altered document as proof of ownership without confirmation from DMV, and, on the Monday after Myers brought the Suburban to defendant, someone had requested and received a basic vehicle information printout for the Suburban from a DMV field office. Defendant's title clerk acknowledged that only the owner, which at that time was defendant, would be interested in this information. The printout revealed an odometer discrepancy and a branded title, which read "out-of-state damage--CA."

At trial, defendant denied that it had inspected the Suburban when it accepted it in trade. However, in addition to the salesman's confirmation to plaintiff that the truck had been detailed, documents showed that the Suburban had had a rear wheel alignment, detail work, lubrication, and an oil and filter change. Defendant did acknowledge appraising the truck and conceded that even a minimal appraisal inspection would have included a visual inspection of the body, paint, glass, upholstery and carpet, a check of the equipment claimed to be on the vehicle, and a test-drive with particular attention to steering and brakes. Plaintiff's expert testified that any minimally trained dealership employee would have recognized apparent problems with the Suburban and inspected further. There were plainly visible lines on the odometer, a "red flag" indication of tampering; the driver's door was misaligned, was a different color and had been replaced; the dashboard came from a different vehicle; the VIN had been cut out of the glove box and the door and had been ground off the transmission; the engine was not original; and the truck had been heavily reconditioned. Together with the suspect proof of ownership, the appearance of the truck as a reconstructed vehicle should have alerted the dealership to a possible salvage history.

One of plaintiff's experts testified that he would have expected any dealership to recognize the problems, to suspect a title brand, and to inquire further through DMV for title status. Plaintiff's other expert testified...