LANSING, Mich. - The Michigan Court of Appeals has reinstated a fraud suit against a Port Huron, Mich., dealership accused of misrepresenting the condition of a used 1986 Ford Escort station wagon.
The 'as-is' clauses in the purchase agreement and the Buyer's Guide form do not bar the purchaser's claim for fraudulent misrepresentation, the court ruled in a suit against Carl Thompson Chevrolet.
Bryan Tomczyk, 'who has no mechanical skills regarding cars beyond checking and changing the oil, went to the dealership's lot looking for a used car to provide dependable transportation' in 1993, according to the court. He contends he told the salesman that 'he did not understand anything about vehicles, other than what the salesman was going to tell him.'
He discussed the car's mechanical condition and its importance to him with the salesman, went on a two-minute test drive in the dealer's parking lot, and then signed a purchase agreement that disclaimed all express or implied warranties. The price was $2,500.
Two days later he took the Escort to a gas station for maintenance. The mechanic there discovered that the air cleaner 'was held on by something rigged with a coat hanger,' and found problems with the head gasket and the emergency brake, Tomczyk alleged. He later had to replace the heater core.
He sued Carl Thompson Chevrolet in St. Clair County (Mich.) Circuit Court for breach of warranties, violation of the state consumer protection law and fraudulent misrepresentation. The complaint asserted that the salesman fraudulently told him 'there was nothing wrong with the vehicle.'
The dealership denied any liability, contending there were no misrepresentations, and that the Buyer's Guide clearly stated, 'You will pay all costs for any repairs. The dealer assumes no responsibility for any repairs regardless of any oral statements about the vehicle.'
Tomczyk initially won $1,200 in a default judgment after the dealership and its lawyer failed to appear for trial. The default judgment was later set aside, however, and the suit was dismissed without trial.
The three-judge appeals court panel now has ordered a trial on the fraud claim.
'Where the salesperson made a statement in absolute terms about the existing condition of the car, reasonable minds could conclude that it was a statement of fact,' it said, not merely a 'generalized opinion.'
Kimberly Tomczyk, a Lexington, Mich., lawyer who is representing her brother, said, 'Unless they come up with an offer, we'll roll the dice and take it to trial.'