Pepp v. Superior Pontiac GMC, Inc., Civ. A. No. 75-2839.
| Decision Date | 26 February 1976 |
| Docket Number | Civ. A. No. 75-2839. |
| Citation | 412 F. Supp. 1053 |
| Parties | James PEPP, Plaintiff, v. SUPERIOR PONTIAC GMC, INC. and General Motors Acceptance Corporation, Defendants. |
| Court | U.S. District Court — Eastern District of Louisiana |
Patrick D. Breeden, New Orleans, La., for plaintiff.
Frederick W. Bradley, David L. Campbell, Trevor G. Bryan, New Orleans, La., for defendants.
This case is before the court on cross-motions for summary judgment. For the reasons that follow, the defendant's motion is GRANTED, and the plaintiff's motion is DENIED.
On July 14, 1975, the defendant Superior Pontiac received a 1973 Honda Civic as a "trade in" for another car. The odometer reading, as given by the previous owner on the Odometer Mileage Statement at that time was 22,283 miles. Mr. James Aucoin, the defendant's sales manager, who was present when the previous owner filled out the Odometer Mileage Statement, took a four block test drive in the car; he checked it for "reconditioning expenses, . . . the transmission and engine for repairs there, windshield damage, and general overall appearance, tires, interior, exterior." The checklist used in this procedure does not contain a requirement that the odometer be checked; Mr. Aucoin testified in his deposition that another dealership at which he has worked uses a different checklist; this other checklist likewise contains no provision to check the odometer. Mr. Aucoin testified that he did not notice any malfunction of the odometer.
After test driving the car, Mr. Aucoin decided that, since it appeared to be in good shape, Superior should keep it for its own used car lot rather than dispose of it through a wholesale dealer. However, since there were already two other Honda Civic automobiles on the lot at that time, and since summer vacations had reduced the service staff, the car remained in the back yard for two to three weeks. No service was performed on the automobile besides cleaning and "detailing" (a thorough cleaning which includes steam-cleaning the engine).
Only one other Superior employee had occasion to drive the car. Evan J. Lambert, Jr., Superior's used car sales manager, drove the car between a half mile and a mile; he did not notice any odometer problem. He did notice that the speedometer was working; he testified that he has never heard of an odometer failing to work if the speedometer was working, since both operate off the same cable.
Mr. Aucoin and Mr. Lambert testified that 22,283 miles would not be unusual for a car of this vintage or condition.
On August 4, 1975, the plaintiff purchased the car in question; at this time the odometer read 22,283.5. Upon inspection of the driver's manual, he discovered that the mileage reading of some eight months before was 22,283, approximately the same as of the time of purchase. Claiming a violation of the Motor Vehicle and Cost Savings Act of 1972, 15 U.S.C. §§ 1901-1991, this suit was filed. For the purposes of this motion, it may be assumed that the mileage disclosure to the plaintiff was incorrect.
Section 1988 provides, "It shall be a violation of this section . . . to violate any rules under this section or to knowingly give a false statement to a transferee . . .." (Emphasis supplied.) The remedies for a violation of Section 1988 are set forth in Section 1989:
Section 1989 makes it clear that a mere negligent violation, or even a knowing violation of the regulations, does not give rise to a cause of action. That section imposes a civil liability only on a person who (a) violates any requirement imposed under this subchapter; (b) and does so "with intent to defraud."
The defendant's employees have attested that they had no actual knowledge that the odometer was malfunctioning. No evidence has been offered that there was a willful violation, and not a scintilla of evidence has ever been hinted at that would suggest, or that would justify an inference that the defendant had any intent to defraud.
The plaintiff argues that negligence alone might support a finding that Section 1989 was violated. He relies on the Senate Report, as reported in U.S.Code Congressional and Administrative News (1972) pp. 3971-72:
Section 408 makes it a violation of the title for any person "knowingly" to give a false statement to a transferee. This section originally allowed a person to rely completely on the representations of the previous owner. This original provision created a potential loophole, however. For example, a person could...
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Hall v. Riverside Lincoln Mercury-Sales, MERCURY-SALES
...said odometer reading was accurate "to the best of his knowledge" although file on auto was incomplete); Pepp v. Superior Pontiac GMC, Inc. (E.D.La.1976), 412 F.Supp. 1053, 1055; Clayton v. McCary (N.D.Ohio 1976), 426 F.Supp. 248, 258), or have predicated liability on a theory of constructi......
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Jones v. Fenton Ford, Inc.
...See Mataya v. Behm Motors, Inc., 409 F.Supp. 65, 69-70 (E.D.Wis. 1976) (actual knowledge required); Pepp v. Superior Pontiac GMC, Inc., 412 F.Supp. 1053, 1055 (E.D.La.1976) (negligence may satisfy "intent to defraud" requirement, especially if gross). Most of the cases dealing with "intent"......
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Roach v. Middleton Auto Sales, Inc., Civil Action No. 08-11424-WGY.
...intent can be made," summary judgment may be appropriate. See Bedsworth, 650 F.Supp. at 765 (quoting Pepp v. Superior Pontiac GMC, Inc., 412 F.Supp. 1053, 1056 (E.D.La.1976)).6 B. The Federal Odometer The Act provides, in relevant part: (a) Findings. Congress finds that— (1) buyers of motor......
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Bradley v. Howard Hembrough Volkswagen, Inc.
...Nebraska (D.Neb.1977), 426 F.Supp. 1176.) This fraudulent intent cannot be presumed, but it can be inferred. Pepp v. Superior Pontiac GMC, Inc. (E.D.La.1976), 412 F.Supp. 1053. Plaintiff claims that an intent to defraud could be concluded from Don Brewer's action in writing 6,008 miles as t......