The Good Used Car Salesman

People rip on me for always telling stories where used car sellers do bad things. But I can tell you of one who was my hero. And he didn't sell a car to anyone I know.

A client of mine bought a used diesel Suburban from a small car lot. It was sold As-Is. She took it for a test drive and it seemed fine. The salesman also told her it was a "one-owner" vehicle. A few days after the purchase, the engine exploded. She had it towed to a shop she trusted and the mechanic called her with the news. "The crankcase was filled with something heavy - like gear lube. That is why you did not hear the rod knock which led to the engine failure." The mechanic saved some of the fluid to show her. He was a certified master mechanic and later became our star witness.

After getting nowhere with the dealer who hid behind his As-Is disclaimer, we filed suit. I rarely file suits for As-Is vehicles because of the difficulty of proving that the buyer was entitled to anything. But here, we could show that the defect in the engine had been hidden from the buyer, which created a case of misrepresentation. Misrepresentation is a common law cause of action, related to fraud, where a party to a contract conceals or withholds information which the other party has a right to know. Whole books have been written on it but that one-sentence definition will work for these purposes.

Keeping in mind that As-Is doesn't shield the seller from everything, we argued that the seller had known of the engine knock and had masked it with the heavy weight oil. A certified title history also showed the vehicle's FIVE (5) previous owners.

In the meantime, my client got the engine fixed. She was seeking reimbursement of the engine repair and her towing bill.

The defendant refused to pay a penny and his attorney kept insisting that the case would be thrown out because of the As-Is disclaimer. After a contentious hearing where my opponent also tried to say that the Uniform Commercial Code applied only between businesses (If that was true, the "As-Is" disclaimers would be ineffective as to consumers, Nimrod) the judge denied the request to dismiss the case. A jury would decide.

We went to trial. During jury selection, attorneys often ask prospective jurors what they do for a living. One man in the back row told me he sold used cars for a living. This brought snickers from the court room because the judge had told the jury pool that the case involved the sale of a used car. Rather than kick him off the jury, I asked him who he worked for. He named a large dealer right down the road from the defendant. I asked him if he agreed with the statement, "There are good used car salesmen and there are bad used car salesmen." He said he agreed with the statement.

I then asked him: "Which are you?"

"I am a good used car salesmen." I watched how he said it and it seemed to me that he was the kind of guy who took pride in his profession and would enjoy the opportunity to figuratively slap a salesman who was giving him a bad name. I left him on the jury. A civil jury in a case like this only has six jurors deliberate so it was a gamble. If I was right it could pay huge dividends. If I was wrong, that one juror could do a lot of damage to my case.

After several days of testimony – I can't even begin to reconstruct how this simple trial got so convoluted – the jury went back to deliberate. They returned and said they had a verdict. The judge asked the foreperson to stand. The used car salesman stood. "We find for the Plaintiff. In the amount [for which she was asking]." The jury gave my client 100 cents on the dollar – the engine repair and the towing. And I was right about the salesman. We do not know what happened in the jury room and I didn't get to speak with the jurors afterward. But there is a good chance that the used car salesman asked to be foreman of the jury. He was certainly influential, being one of six people who decided in my client's favor.

The defendant tried a few shady things in an attempt to not pay the judgment. Overnight, he changed the name of the car lot and his attorney told me that the defendant "doesn't exist anymore." I pointed out that the dealership was still there when I drove by it on the way to court. The attorney told me to go back and look at the cars on the lot: they now had stickers on them saying they were owned by a new entity.

I don't know where people come up with this stuff but suffice it to say that's not how it works. The defendant filed a few more silly motions but eventually agreed to pay.

And there is a lesson in here: If you are selling a car As-Is (and this applies to individuals as well as dealers) you can't actively hide defects from the buyer and expect to always get away with it. And, one of my heroes is a used car salesman.

Steve Lehto has been practicing consumer protection and lemon law for 23 years in Michigan. He taught Consumer Protection at the University of Detroit Mercy School of Law for ten years and wrote The Lemon Law Bible. He also wrote Chrysler's Turbine Car: The Rise and Fall of Detroit's Coolest Creation and The Great American Jet Pack: The Quest for the Ultimate Individual Lift Device both published by Chicago Review Press. Follow him on Twitter while Twitter is still kind of cool. Twitter: @stevelehto