Tye v. Spitzer-Dodge

• Decision Date: 24 October 1980
• Docket Number: No. C-2-77-893.,C-2-77-893.
• Citation: 499 F. Supp. 687
• Parties: Edna F. TYE, Plaintiff, v. SPITZER-DODGE, Defendant.
• Court: U.S. District Court — Southern District of Ohio

499 F. Supp. 687

Edna F. TYE, Plaintiff, v. SPITZER-DODGE, Defendant.

No. C-2-77-893.

United States District Court, S. D. Ohio, E. D.

October 24, 1980.

James W. Rickman, Columbus, Ohio, for plaintiff.

George R. Nickerson, James H. Callard, Loveland, Callard & Clapham, Columbus, Ohio, for defendant.

OPINION AND ORDER

KINNEARY, District Judge.

This action was instituted by the plaintiff, Edna F. Tye, alleging that the defendant, Spitzer-Dodge, failed to comply with the odometer tampering and disclosure requirements of the Motor Vehicle Information and Cost Savings Act of 1972, 15 U.S.C. § 1981 et seq. The matter is now before the Court on defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

Rule 56(c), F.R.Civ.P., provides in relevant part that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

The principles this Court must apply in deciding a motion for summary judgment are well established. Under Rule 56(c), the moving party has the burden of demonstrating the absence of a genuine issue of material fact and that he is entitled to a judgment as a matter of law. See, Adickes v. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Felix v. Young, 536 F.2d 1126 (6th Cir. 1976); and, 6 J. Moore Federal Practice ¶ 56.153 (2d ed. 1975). The Court is not to resolve issues of fact, but rather determine whether there are any material issues of fact to be tried. United States v. Articles of Device, etc., 527 F.2d 1008, 1011 (6th Cir. 1976). "If a question of fact remains, the motion for summary judgment should be denied and the case should proceed to trial." Felix v. Young, supra, at 1130. Finally, the case is to be viewed in the light most favorable to the party opposing the motion. Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir. 1962). It is upon these legal standards for summary judgment that defendant's motion must be considered.

The essential facts upon which plaintiff, Mrs. Tye, brought this suit are as follows. On January 10, 1973, Mrs. Tye purchased a new 1973 Dodge automobile from the defendant Spitzer-Dodge Spitzer. She took delivery of the car the following day, whereupon she noticed that the odometer registered approximately seven miles.

For a substantial period of time, Mrs. Tye continued to drive her car while experiencing numerous difficulties with its operation. In her pro se memorandum filed with the Court, she stated she constantly complained to Spitzer about the extreme difficulty she had in steering her car and that the tires were prone to wear out particularly quickly. On March 23, 1976, Mrs. Tye then received a citation from the highway patrol for driving an automobile with defective equipment. She was also told by the officer that her car was in no condition to drive.

The following day, on March 24, 1976, Mrs. Tye took her car to a service station for repairs where apparently she learned that the car had been involved in a collision prior to her purchasing it. She filed a complaint with the Ohio Attorney General's Office and thereafter, on April 15, 1976, a representative from Chrysler Corporation inspected her car and verified that it was defective and dangerous to drive. Making some additional inquiries into her car troubles, in April of 1976 Mrs. Tye spoke to the general manager of Spitzer, who revealed to her that prior to her purchasing the car, its odometer was set back from a previously registered amount of approximately 2500 miles.

Mrs. Tye originally filed her pro se suit against Spitzer on November 21, 1977. Upon defendant's motion, this Court dismissed the suit on March 3, 1978, on the grounds that Mrs. Tye's complaint provided too little factual information upon which this Court could independently ascertain the existence of its jurisdiction over the subject matter. The case was reopened, however, on September 8, 1978, pursuant to the Court's order determining that in her motion to reopen, Mrs. Tye had stated sufficient facts for finding a possible violation of the Motor Vehicle Information and Cost Savings Act, 15 U.S.C. § 1901 et seq. The plaintiff thereafter filed her amended complaint asserting a cause of action under the above statute.

The relevant sections of the Motor Vehicle Information and Cost Savings Act, 15 U.S.C. § 1901 et seq., to be applied in the instant case are set forth in Subchapter IV, entitled Odometer Requirements, 15 U.S.C. § 1981 et seq. Odometer Act. The Congressional intent and purpose in enacting the Odometer Act was to take a dim view of anyone who tampered with an odometer in order to make a car appear to be a more attractive purchase to the prospective buyer.¹ In furtherance of that purpose, § 1984 prohibits odometer tampering by providing that:

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

In addition, § 1988 sets forth the disclosure requirements any transferor must give to the transferee in connection with the transfer of ownership of an automobile.²

In order to render these requirements effective, § 1989 provides for civil actions to impose liability against "any person who, with intent to defraud, violates any requirement imposed under this subchapter ...."³ Thus, liability under the Odometer Act is predicated upon "the existence of both a violation of the odometer requirements, and an intent to defraud." Clayton v. McCary, 426 F.Supp. 248, 258 (N.D.Ohio 1976).

Finally, this Court has jurisdiction of the subject matter of this action pursuant to 15 U.S.C. § 1989(b).⁴

Based on the foregoing pertinent provisions, the plaintiff, Mrs. Tye, has essentially claimed that the defendant tampered with her car's odometer prior to her purchasing it. Furthermore, although not explicitly alleged in her complaint, Mrs. Tye has stated sufficient facts upon which the Court can reasonably infer and find that the allegation of the defendant's "intent to defraud" has been established.⁵

In defendant's motion for summary judgment, two points are argued. First, the defendant contends that the odometer requirements of 15 U.S.C. § 1981 et seq. are inapplicable in this instance. Secondly, even if the statute does apply, the defendant contends that the plaintiff is barred from bringing suit because the statute of limitations has run.

Upon full consideration, the Court finds that defendant's arguments are without merit and refuses to grant defendant's motion for summary judgment.

Supporting the first argument that the statute is inapplicable, defendant addresses the Court's attention to the fact that the plaintiff purchased her new Dodge prior to the effective date of the statute.

The Odometer Act, 15 U.S.C. § 1981 et seq., was enacted by Congress on October 20, 1972. Section 412 of Public Law 92-513, provided that: "This title ... shall take effect ninety calendar days following the date of enactment of this Act." 3 U.S.Code Cong. & Admin.News, pp. 3960, 3970-72 (1972). Thus, the Act took effect on January 18, 1973. The parties have stipulated that Mrs. Tye purchased her car from defendant Spitzer on January 11, 1973. The defendant, therefore, claims that the Act is inapplicable.

At the outset, the Court finds that a material question of fact may exist as to whether the alleged tampering occurred before or after October 20, 1972, the date the Odometer Act became law. If the tampering occurred prior to the Act's enactment, then this Court would be in agreement with the defendant's position that the Act does not apply in the instant case. If, on the other hand, the tampering occurred sometime between October 20, 1972 and January 11, 1973, the date of purchase,⁶ then the critical issue to be decided is whether Congress intended to afford consumers the opportunity to bring suits under the Odometer Act based on violations which have occurred after the Act's enactment date, but before its effective date. This issue has never been decided by the federal courts and the Court now concludes that the Odometer Act should indeed apply in such circumstances.

In one of the first cases brought under the Odometer Act, Delay v. Hearn Ford, 373 F.Supp. 791 (D.S.C.1974), the court interpreted the application of the Act based on facts where the plaintiff had traded his car to the defendants on December 23, 1972, and then repurchased it on January 19, 1973, one day after the Act's effective date. The action was brought under § 1989 alleging a violation of § 1984, for odometer tampering, and of § 1989, for failure to disclose the odometer's accurate mileage. Because the car had been in the defendant's possession from December 23, 1972 to January 19, 1973, the court reasonably inferred that the odometer had been turned back by the defendants during this time. Consequently, the court found a violation of § 1984 notwithstanding, the possibility that the defendants' tampering might have occurred prior to the effective date of the Odometer Act. The court explained that:

The purpose of the statute is to punish odometer tamperers by imposing civil penalties upon them and to reward purchasers who discover such tampering and bring it to the attention of the federal courts.

In keeping with the stated Congressional purpose in enacting these statutes, this court will not permit defendant to avail itself of the argument that the odometer was rolled back prior to the actionable date of the statute. It is manifest from the Congressional statement of intent that the ninety day waiting period was only for the purpose of the dissemination of information to those most affected by the law and was not intended by Congress to give

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