The Week in Torts – Cases from the Week of November 30, 2018

FLORIDA LAW WEEKLY
VOLUME 43, NUMBER 48
CASES FROM THE WEEK OF NOVEMBER 30, 2018

SUMMARY JUDGMENT REVERSED IN FDUTPA CASE AGAINST CAR DEALERSHIP.

White v. Ferco Motors Corp., 43 Fla. L. Weekly D2576 (Fla. 3^rd DCA November 21, 2018):

A man bought a used car after seeing an internet advertisement. He lived in Tampa, and drove to the dealership in Miami. While he test drove the used BMW, he declined to have it inspected by a third party prior to purchase, instead relying upon a review of the Carfax summary. Before the sale, two of the dealer’s sales representatives informed the buyer that the dealer had inspected the vehicle to ensure that it was mechanically sound.

The man executed a Retail Purchase Agreement, a clear “As-Is” warranty, a Spot Deliver Agreement, containing an addendum that the dealership did not assume any responsibilities for the history of the vehicle and a waiver of a service contract.

The man drove the vehicle back to Tampa without issue. Two days later, it broke down mid-day. Yet, the check engine light failed to come on. While waiting for the tow truck to arrive, the plaintiff opened the glove compartment and saw that many of the fuses were missing from the fuse box.

Plaintiff sued the dealership alleging claims for fraud, fraudulent concealment, negligent misrepresentation, and violations of FDUTPA.

The trial court granted final summary judgment in favor of the dealership, finding that the plaintiff had purchased a used vehicle, had executed several documents acknowledging the purchase of a used vehicle with an As-Is non-warranty, chose not to have the vehicle inspected by a third party, and found that as a matter of record, there was no admissible competent substantial evidence of any fraud or misrepresentation made.

The Third District reversed. Notwithstanding the As-Is agreement and plaintiff’s concession that he could not rely on oral promises, there was an affidavit of a mechanic about the problems, a charge made by the dealership for inspection and the condition of the vehicle (i.e., the disconnected fuses) that created genuine issues of material fact. When the record reflects even the possibility of a material issue of fact, or if different inferences could be drawn reasonably from the facts, such doubt must be resolved against the moving party and summary judgment must be denied.

In this case, the plaintiff was charged a pre-delivery service charge that he was told included an oil change, and was assured that the vehicle was mechanically sound. The dealership argued that the plaintiff signed documents stating he could not rely on oral promises, but the pre-delivery document states that the charge represents costs and profits to the dealer for inspecting, cleaning and adjusting vehicles, and preparing documents related to the sale. The plaintiff had to pay an additional fee for inspecting and adjusting, and even though the fee did not include an oil change, upon inspection, the lack of oil in the vehicle should reasonably have been discovered.

FDUTPA and fraud statutes in general are to protect a purchaser against a seller even in the instance of signed agreements (an individual cannot waive the protection of a statute that is designed to protect both the public and the individual). As such, contractual provisions that defeat the remedial and deterrent provisions of a statute, are contrary to public policy and unenforceable.

DEFENDANTS OFFER TO SETTLE CONDITIONED ON PLAINTIFF RELEASING “ALL CLAIMS” ASSERTED AND DISMISSAL WITH PREJUDICE OF ALL COUNTS IN COMPLAINT NOT VALID, WHERE COMPLAINT CONTAINED CLAIMS BOTH FOR MONETARY DAMAGES AND FOR EQUITABLE RELIEF–THE OFFER OF JUDGMENT STATUTE APPLIES TO ACTIONS FOR DAMAGES ONLY.

Starboard Cruise Services v. DePrince, 43 Fla. L. Weekly D2581 (Fla. 3^rd DCA November 21, 2018):

Readers of The Week in Torts may remember this as the case where plaintiff had visited a shipboard jewelry boutique on a cruise and requested a quote for a “15 to 20-carat loose diamond,” necessitating the store manager to contact its corporate office for such a large diamond. The corporate office sent an email providing pricing for two diamonds; one a 20.64-carat diamond priced at $235,000 and one a 20.73-carat diamond priced at $245,000.

When the ship submitted the order for the diamond, the vendor clarified that the quote was based on a “per carat” pricing and not the total cost of the diamond. The plaintiff filed the lawsuit against the cruise line after the ship credited the charges and refused to sell the diamond at the amount quoted.

Ultimately, the court ruled that the mistake prevented the plaintiff from purchasing the 20-carat diamond for $235,000 instead of the $4.8 million it actually cost.

The defendant filed a proposal for settlement seeking to resolve all claims for damages asserted by the plaintiff against the defendant for the counts for damages in the complaint (breach of contract and conversion). Count I was for specific performance.

The trial court refused to enforce the proposal finding that while it was unambiguous, the acceptance of the proposal was conditioned on the plaintiff signing a release of all claims asserted in the lawsuit and dismissing all claims (monetary and non-monetary with prejudice), and thus, the proposal was invalid under the supreme court’s decision in Diamond Aircraft v. Horowitch, 107 So.3d 362 (Fla. 2013).

Ultimately, because the plaintiff was seeking both monetary and non-monetary relief in the complaint, the defendant’s proposal for settlement was invalid, as that statute applies to cases involving monetary damages only. The plain language of section 768.79 states that it applies to any civil action for damages, therefore it does not apply to actions where plaintiffs seek both damages and equitable relief.

IN ANOTHER CASE REPORTED THIS WEEK, THE TRIAL COURT ERRED IN GRANTING ATTORNEY’S FEES BASED UPON AN OFFER OF JUDGMENT WHERE THE OFFER SOUGHT TO SETTLE BOTH EQUITABLE AND MONETARY CLAIMS.

Southern Specialties, Inc. v. Farmhouse Tomatoes, 43 Fla. L. Weekly D2587 (Fla. 4^th DCA November 21, 2018).

DEFAMATION CLAIM FELL WITHIN SCOPE OF SALES CONTRACT’S ARBITRATION PROVISION.

County Line Auto Center, Inc. v. Kulinsky, 43 Fla. L. Weekly D2589 (Fla. 4^th DCA November 21, 2018):

Plaintiffs sued the defendant auto dealer, after purchasing a used Bentley that was subsequently repossessed due to a mistake. The plaintiffs’ amended complaint alleged three counts against the dealer, one of which was defamation based on the conduct of the dealer’s salesman.

Specifically, the plaintiffs noted that the salesman resided in the same condominium complex as they did, along with many of their business customers, and the plaintiffs claimed that after the repossession, the salesperson had conversations with a member of this tight-knit condo community falsely stating that their Bentley was repossessed because plaintiffs were suffering from financial difficulties.

The dealer moved to compel arbitration of all counts based on the arbitration clause within the sales contract.

In assessing whether a dispute is covered by an arbitration provision, courts look to see (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitral issue exists; and (3) whether the right to arbitration was waived.

In this case, the arbitration language did expressly contemplate tort actions and the arbitration language was broad because of the “relates to” section broadening the scope of the arbitration provision. The court agreed that the dealership had a significant relationship between the claim and the agreement and the plaintiffs alleged that the defamation claim was based on defamatory statements allegedly made by the salesman within the scope of his employment.

The court concluded by ruling that to the extent any ambiguity might exist in the scope of the purchase agreement’s arbitration provisions, it was resolving the ambiguity in favor of arbitration.