Smith v. Mellon Bank

Decision Date13 April 1992
Docket NumberNo. 91-3501,91-3501
Citation957 F.2d 856
PartiesBeverly Ann SMITH, as Personal Representative of the Estate of David L. Smith, and Beverly Ann Smith, Individually, Plaintiff-Appellant, v. MELLON BANK, a Delaware corporation, Defendant-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

John R. Overchuck, Overchuck, Langa & Crews, PA, Laura P. Denault, Orlando, Fla., for plaintiff-appellant.

Mark F. Bideau, Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, Alfred J. Malefatto, W. Palm Beach, Fla., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before ANDERSON and COX, Circuit Judges, and RONEY, Senior Circuit Judge.

RONEY, Senior Circuit Judge:

In this appeal from a directed verdict for the defendant in a claim for damages for an alleged violation of Florida's misleading advertising statute, we hold that it was unreasonable for the plaintiff to assume from the advertisement relied upon that the defendant credit card company would provide free accident life insurance for the rental of a car with a credit card.

In 1987, David and Beverly Smith rented a car in Mexico with a credit card the defendant Mellon Bank issued. Unfortunately, they were involved in an accident in the car and David Smith was killed. Beverly testified that they had rented the car with the Mellon Bank credit card, relying upon words on the card jacket which stated in pertinent part as follows:

Your new Mellon Bank credit card ... the only card you'll ever need

Mellon Bank gives you greater value and more service than most other credit card accounts:

. Free card registration.

. Up to 20% car rental discounts.

. $100,000 travel/accident insurance at no added cost.

She testified that they thought they would be covered by $100,000 worth of life insurance if they were involved in an accident with the rental car and that they relied on the advertisement for that belief.

The Travel/Accident Insurance which Mellon Bank provided to its cardholders was what is known as "common carrier travel insurance" and covered accidental bodily injury caused in connection with a common carrier, but excluded accidents involving a rental car.

The cause of action here is based exclusively on the assertion that the advertisement was misleading under Section 817.41, Florida Statutes. A cause of action for breach of contract initially filed against Mellon Bank and Aetna Life Insurance and Annuity Company was voluntarily dismissed. At the close of the plaintiff's case in chief, the defendant moved for a directed verdict on the misleading advertising statute claim, and the trial court granted the motion.

The Florida Statute provides as follows:

Misleading advertising prohibited.--

817.41 (1) It shall be unlawful for any person to make or disseminate or cause to be made or disseminated before the general public of the state, or any portion thereof, any misleading advertisement. Such making or dissemination of misleading advertising shall constitute and is hereby declared to be fraudulent and unlawful, designed and intended for obtaining money or property under false pretenses.

. . . . .

(6) Any person prevailing in a civil action for violation of this section shall be awarded costs, including reasonable attorney's fees, and may be awarded punitive damages in addition to actual damages proven. This provision is in addition to any other remedies prescribed by law.

In order to prove a violation of Section 817.41, Florida law requires the plaintiff to prove reliance on the alleged misleading advertising, as well as each of the other elements of the common law tort of fraud in the inducement. Vance v. Indian Hammock Hunt & Riding Club, Ltd., 403 So.2d 1367, 1370 (Fla.Dist.Ct.App.1981). The law is clear that reliance by a party claiming fraud must be reasonable and justified...

To continue reading

Request your trial
21 cases
  • Singh v. Royal Caribbean Cruises Ltd.
    • United States
    • U.S. District Court — Southern District of Florida
    • December 10, 2021
    ...alleges reliance on advertisement, such reliance must be "reasonable and justified under the circumstances," Smith v. Mellon Bank , 957 F.2d 856, 858 (11th Cir. 1992), and must show a "causal connection," namely "that the wrong [committed by the defendant] was the proximate cause of [the pl......
  • Jackson v. Anheuser-Busch Inbev SA/NV, LLC
    • United States
    • U.S. District Court — Southern District of Florida
    • August 18, 2021
    ... ... (internal quotation marks omitted); see also Smith v ... Sch. Bd. of Orange Cnty. , 487 F.3d 1361, 1366-67 (11th ... Cir. 2007) (holding ... 11433206, at *1 (M.D. Fla. Jan. 15, 2008) (quoting Am ... Bank & Tr. v. Frogel, 726 F.Supp. 1292, 1294 (S.D ... Fla. 1989)). Nevertheless, “Rule 9(b) ... Mgmt ... Inc. , 2011 WL 4434891, at *4; see also Smith v ... Mellon Bank , 957 F.2d 856, 858 (11th Cir. 1992) ... (“In order to prove a violation of Section ... ...
  • Phelps v. Hormel Foods Corp.
    • United States
    • U.S. District Court — Southern District of Florida
    • March 24, 2017
    ...on it; and (4) injury to the Plaintiff as a result of acting in justifiable reliance on the misrepresentation."); Smith v. Mellon Bank, 957 F.2d 856, 858 (11th Cir. 1992) ("In order to prove a violation of Section 817.41, Florida law requires the plaintiff to prove reliance on the alleged m......
  • White Const. Co. v. Martin Marietta Materials
    • United States
    • U.S. District Court — Middle District of Florida
    • April 7, 2009
    ..."The law is clear that reliance by a party claiming fraud must be reasonable and justified under the circumstances." Smith v. Mellon Bank, 957 F.2d 856, 858 (11th Cir.1992). For if the recipient "knows that it [the statement] is false or its falsity is obvious to him," his reliance is impro......
  • Request a trial to view additional results
2 books & journal articles
  • Obtaining relief for deceptive practices under FDUTPA.
    • United States
    • Florida Bar Journal Vol. 75 No. 10, November 2001
    • November 1, 2001
    ...proximate cause of his injury or damage, and proof of reliance is necessary to prove the causal connection." Accord, Smith v. Mellon Bank, 957 F.2d 856, 858 (11th Cir. 1992); State Farm Mutual Auto Ins. v. Novotny, 657 So. 2d 1210, 1213 (Fla. 5th D.C.A. (59) E.g., Cavalier Carpets, Inc. v. ......
  • Chapter § 5.09 TRAVEL INSURANCE AND PERFORMANCE BONDS: COVERAGE ISSUES
    • United States
    • Full Court Press Travel Law
    • Invalid date
    ...of a cardholder rising on a common carrier; whitewater rafting company not a common carrier). Eleventh Circuit: Smith v. Mellon Bank, 957 F.2d 856 (11th Cir. 1992) (credit card travel insurance). State Courts: California: Aviation Data, Inc. v. American Express Travel Related Services Compa......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT