S & S Toyota, Inc. v. Kirby

• Decision Date: 03 February 1995
• Docket Number: No. 94-1156,94-1156
• Citation: 649 So.2d 916
• Parties: 20 Fla. L. Weekly D333 S & S TOYOTA, INC., Appellant/Cross-Appellee, v. Carrie KIRBY, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 916

649 So.2d 916

20 Fla. L. Weekly D333

S & S TOYOTA, INC., Appellant/Cross-Appellee, v. Carrie KIRBY, Appellee/Cross-Appellant.

No. 94-1156.

District Court of Appeal of Florida,

Fifth District.

Feb. 3, 1995.

Kenneth C. Crooks, Dean, Mead, Spielvogel, Goldman & Boyd, Merritt Island, for appellant/cross-appellee.

William H. Ogle, Ledford, Mayfield & Ogle, Ormond Beach, for appellee/cross-appellant.

W. SHARP, Judge.

This is an appeal and cross-appeal from an order granting, in the alternative, a remittitur or new trial with respect to compensatory and punitive damages awarded to Carrie Kirby. Carrie filed suit against S & S Toyota, Inc. (Toyota), after she discovered that the used automobile she purchased from Toyota was not a "low mileage" vehicle as represented. On appeal, Toyota contends that the trial court should have granted its motion for a directed verdict or new trial on the issue of punitive damages. On cross-appeal, Carrie contends that the court erred in granting Toyota's motion for remittitur on damages. Carrie also argues that the court erred in denying her request for treble damages and attorney's fees under the federal odometer law. We agree with this latter argument and reverse this portion of the order. We find no error in the remaining issues, and affirm those rulings.

In February 1990, Carrie purchased a 1984 Datsun 300 ZX from Toyota for over $10,000. Carrie later filed suit against Toyota, claiming that Toyota had misrepresented that the vehicle was a "one owner," low mileage," used car with only 26,000 miles when, in fact, the vehicle had six prior owners and the certificate of title from the owners who sold the vehicle to Toyota noted that the odometer reading was "inaccurate." Carrie sought compensatory damages, treble damages under the federal odometer law, punitive damages and attorney's fees.

Following a two-day trial, the jury found no fraudulent misrepresentation on the part of Toyota but found that Toyota was guilty of a negligent misrepresentation. The jury awarded damages of $15,000 and punitive damages of $35,000.

In response to post-trial motions filed by the parties, the court denied Carrie's request for treble damages, finding that she had waived her claim under the federal odometer law and had elected to proceed solely on her claim for common law fraud. The court also denied Toyota's motions for directed verdict and for new trial but did grant its motion for a remittitur on the issue of compensatory damages and punitive damages. When Carrie declined to accept the remittitur ruling, the order resulted in the granting of a new trial on the issue of damages only.

On appeal, Toyota argues that the evidence was insufficient to support an award of punitive damages and therefore the trial court should have granted its motion for a directed verdict or new trial on this issue. Punitive damages are imposed in order to punish the defendant for extreme wrongdoing and to deter others from engaging in similar conduct. Chrysler Corporation v. Wolmer, 499 So.2d 823 (Fla.1986). The character of negligence necessary to sustain an award of punitive damages "must be of a gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of those rights." Chrysler Corporation, 499 So.2d at 824, quoting Carraway v. Revell, 116 So.2d 16, 20, n. 12. Stated another way, punitive damages are appropriate only when a defendant engages in conduct which is fraudulent, malicious, deliberately violent or oppressive, or committed with such gross negligence as to indicate a wanton disregard for the rights of others. W.R. Grace & Co.-Connecticut v. Waters, 638 So.2d 502 (Fla.1994); First Interstate Development Corp. v. Ablanedo, 511 So.2d 536 (Fla.1987).

At trial, William Gordon, an automotive expert who examined the vehicle in April 1991, testified on Carrie's behalf. Gordon found that the exterior paint of the vehicle was a quick, over-sprayed enamel finish and that the original paint, found by opening the gasoline access door, was a faded, dull, pinkish color, obviously aged because of exposure to the elements. Gordon found that the trunk area had rust in it, the steering wheel was dull, the driver's seat had deteriorated, and that the vehicle had a variety of mechanical problems. Gordon testified that auto dealers who appraise vehicles for value and who try to determine the vehicle's age and condition are taught to look for these items and that a sales manager or used car manager would be very critical in his appraisal of the car at the time it was being traded. According to Gordon, the problems with this vehicle indicated a mileage and usage far in excess of what was shown on the odometer and that the vehicle probably had at least twice the mileage indicated on the odometer. ¹ Based on this mileage, the sales price should have been cut by at least fifty percent.

Carrie herself testified that she gave Toyota power of attorney to handle the title transaction. The certificate of title from the prior owners and sellers of the vehicle to Toyota had "inaccurate" under the odometer reading. There was also evidence that this "inaccurate" reading would have come to the attention of the person processing the documents at Toyota.

The jury was instructed that punitive damages may be awarded "if Toyota's conduct showed reckless indifference to the rights of others as to be equivalent to an intentional violation of those rights." The jury answered "yes" to the following question on the verdict form: "Should punitive damages be accessed against Defendant, Toyota as a result of its conduct?" and awarded $35,000 in punitive damages.

Toyota now argues that there was no special interrogatory finding that it had acted with fraud, actual malice, deliberate violence or oppression or such gross negligence as to indicate a wanton disregard for the rights of others, and therefore the trial court was prohibited from finding support for the award of punitive damages. However, the burden is on Toyota to offer such special verdict forms which would have required the finding that Toyota now complains is lacking. See Hutton v. Sussman, 504 So.2d 1372 (Fla. 3d DCA 1987). The jury was properly instructed with regard to punitive damages and it is assumed that the jury correctly follows the judge's instructions in awarding damages. Hutton. The evidence and the reasonable inferences from the evidence are sufficient for the jury to have concluded that Toyota knew or should have known that the mileage and usage of the car was far in excess of the 26,000 miles that appeared on the odometer. In these circumstances, the trial court was correct in affirming the award of punitive damages. See Hutton (trial court did not err in entering judgment in conformity with verdict awarding punitive damages where it was assumed that the jury properly followed the judge's instruction on punitive damages and the defendant failed to offer special verdict forms which would have required specific findings regarding punitive damages). Cf. American Cyanamid Co. v. Roy, 498 So.2d 859 (Fla.1986) (award of punitive damages improper where manufacturer of toxic chemical may have been negligent but the evidence showed that the company had a high level of conscientiousness and concern and the evidence did not show an entire lack of care which would raise a presumption of an indifference to the rights of others); Rogers v. Mitzi, 584 So.2d 1092 (Fla. 5th DCA 1991), rev. denied, 598 So.2d 77 (Fla.1992) (no basis for punitive damages where the evidence did not establish that the defendant had made a deliberate and knowing misrepresentation designed to cause and actually did cause detrimental reliance by the plaintiffs).

On cross-appeal, Carrie contends that the trial court erred in denying her claim for treble damages under the Motor Vehicle Information and Cost Savings Act, 15 U.S.C. Secs. 1901-1991. The trial court apparently concluded that the federal odometer law required a specific "intent to defraud" and since Carrie had failed to request a specific interrogatory finding such intent, there was no basis to award damages.

15 U.S.C. Sec. 1988 requires that any person transferring a motor vehicle must disclose the cumulative mileage on the odometer or disclose that the actual mileage is unknown. This section also proscribes the giving of a false statement in making any odometer disclosure. 15 U.S.C. Sec. 1989 provides for civil actions to enforce liability for violation of the odometer disclosure requirements:

(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.

The "intent to defraud" required by section 1989 is not specifically defined in the Act and the courts have developed differing standards in attempting to determine whether a particular violation amounts to an intent to defraud. See Haynes v. Manning 917 F.2d 450 (10th Cir.1990); Huycke v. Greenway, 876 F.2d 94 (11th Cir.1989). A wrongdoer's intent to defraud is ordinarily proved by circumstantial evidence and the courts have been willing to infer an intent to defraud where the seller had actual knowledge that an odometer disclosure statement was false. Tusa v. Omaha Auto Auction, Inc., 712 F.2d 1248 (8th Cir.1983); Nieto v. Pence, 578 F.2d...