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April 4, 1995

LAURIE AMBRE, Plaintiff,

The opinion of the court was delivered by: DAVID H. COAR

 On September 26, 1992, plaintiff Laurie Ambre ("Ambre") purchased from defendant Joe Madden Ford ("Madden") a "new" 1992 Ford Explorer manufactured by defendant Ford Motor Company ("Ford"). Ambre alleges that shortly after she purchased the Explorer, it manifested multiple defects which affected its safety, reliability and value. (1A Compl., Count IV, at PP5, 7). In Count IV of her amended complaint, Ambre advances a common law fraud claim against Madden and Ford. More specifically, she alleges that both defendants made the following false oral and/or written representations: that the vehicle would be covered under the extended warranty for thirty-six months and 60,000 miles from the date of purchase (i.e., September 26, 1992) when, in fact, the warranty coverage lasted only for approximately twenty-six months and 53,000 miles (id. at P13); that the vehicle was new when it had over 7,000 miles on the date of purchase (id. at P14); and that she was receiving a fair price when defendants allegedly charged her more than the manufacturer's suggested retail price for a new 1992 Explorer (id. at P15). Ambre further alleges that defendants made these misrepresentations with the intent that she would rely upon them and that she did in fact rely upon them to her detriment. (Id. at PP17-19). Madden has moved to dismiss count IV pursuant to Rule 12(b)(6) or, in the alternative, for summary judgment pursuant to Rule 56.

 In response to defendant's motion to dismiss, plaintiff sought and received leave of court to file an amended complaint to replead certain allegations in Count IV and to correct problems with the complaint's exhibits. *fn1" In light of the amendment to the complaint and the parties submission of materials outside of the pleadings, including affidavits and statements of contested and uncontested facts, this court will address Madden's pending motion as a motion for summary judgment rather than a motion to dismiss.

 Except where specifically noted, the following are the uncontested facts.

 On September 26, 1992, Ambre purchased a 1992 Ford Explorer bearing vehicle identification number 1FMDU34X4NUB100343 from Madden, an automobile dealership primarily engaged in the sale and servicing of new and used Ford vehicles. (12(m), at PP1, 3). Charles Thompson was one of the Madden salesmen involved in the sale of the Explorer to Ambre. (Thompson Aff.). As part of the sale, Ambre traded in her 1990 Mercury Cougar. (12(m), at P4). Ambre owed a balance of $ 7,454.67 on her trade-in. (Compl. Exh. A).

 The Explorer was a demonstrator and had 7,050 miles on it. *fn2" (12(m), at P7; Thompson Aff., at P6). Thompson orally advised Ambre of these facts. (Id.). Prior to Ambre's purchase, the Explorer had not been titled to any individual or entity other than Joe Madden Ford, Inc. (12(m), at P12). According to Ambre's affidavit, the sales people told her that the Explorer was a new vehicle. (Ambre Aff., at P3). Madden designated the vehicle as "new" on both the Buyer's Order and the Retail Sales Installment Agreement. (Compl., Exh. A; Bank One Mot. Turnover Order, Exh. A).

 Ambre maintains that the window sticker was not shown to her before she purchased the Explorer. *fn3" (Ambre Aff., at P2). Nonetheless, she negotiated a "bottom line" purchase price with Thompson which represented the amount she would pay for the Explorer after receiving a credit for her trade-in. (12(m), at P8). After negotiating the "bottom line" price, Thompson completed the Buyer's Order form by coming up with calculations that reached the agreed upon sales price. (Id. at P9). Thompson began his price calculations with the manufacturer's top-line suggested retail price ("MSRP") without discount, which was $ 27,164.00 as reflected on the manufacturer's invoice. (Thompson Aff., at P3). He then subtracted from the MSRP a "used car allowance" of $ 10,339.00, which represented the actual value of Ambre's trade-in plus an additional discount of $ 4,539.00. (Id.). These calculations left a balance pre-tax and fees balance of $ 16,864.00. (Compl., Exh. A). The Buyer's Order, which Ambre signed, listed the odometer at 7050 miles. (Compl. Exh. A; 12(m), at P5). It also contained the following handwritten statement: "Sold w/ [with] Remainder of Factory Warranty. In Service 11/9/91." (Id.). Ambre also signed an Odometer Disclosure Statement which revealed that the odometer read 7050 miles. (12(m), at P6).

 Finally, Ambre bought an Extended Service Plan ("ESP") for 3 years/60,000 miles coverage. In her affidavit, she attests that Madden's sales people did not tell her that the effective date of the ESP was back-dated to the date Madden original put the vehicle into service as a demonstrator (i.e., November 9, 1991). (Ambre Aff., at P4). Ambre believed, "based on what she was told," that she had purchased 60,000 miles of warranty coverage that began on September 26, 1992, the date she purchased the Explorer. (Id.). She instead received a 26 month/53,000 mile warranty. (12(m), at P14). Ambre attached to her complaint of a portion of a written document describing the ESP; it stated in pertinent part:

Ford ESP PremiumCARE is available in several time and mileage options. Coverage begins with the original in service date and zero mileage. Repairs made on or before the enrollment date are not eligible for reimbursement. Choose the plan best suited for your driving needs: . . .

 (Compl., Exh. B-3). She also attached her ESP identification card, which lists as 11-09-94 as the "date plan expires" and 60000 as the "mileage plan expires." ( Id., Exh. B-5). Ambre has not established when she first received these documents and whether she reviewed them before the purchasing the ESP.

 I. Summary Judgment Standards

 Summary judgment is proper "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." Fed. R. Civ. Pro. 56(c). A genuine issue of material fact exists for trial when, in viewing the record and all reasonable inferences drawn from it in a light most favorable to the non-moving party, a reasonable jury could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986); Kincaid v. Vail, 969 F.2d 594, 600 (7th Cir. 1992). The movant has the burden of establishing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). If the moving party meets this burden, the non-moving party must set forth specific facts which demonstrate the existence of a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324, 106 S. Ct. at 2553. Rule 56(c) mandates the entry of summary judgment against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S. Ct. at ...

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