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Popovich v. S. Park Pontiac & Subaru9/26/1997
GENE DONOFRIO, Presiding Judge.
Plaintiff-appellant, John F. Popovich, appeals from a judgment of the Mahoning County Common Pleas Court granting summary judgment in favor of defendants-appellees Allstate Insurance Company and William J. Pancake. Appellant's multi-count complaint alleged fraud, deceptive practices and violations of the federal and Ohio odometer rollback and disclosure provisions with regard to his purchase of a used car (which had previously been owned by appellees) from defendant Southern Park Pontiac & Subaru, Inc.
In September 1987, Allstate acquired title to a 1986 Dodge Daytona from its insured, Antonio Lombardi, in New York. When Lombardi transferred title to the vehicle to Allstate, he completed a written odometer statement on the bill of sale in which he certified that the mileage indicated on the vehicle's odometer was 13,149. Lombardi also marked a preprinted statement on the bill of sale in which he certified that the actual mileage was unknown. When Lombardi signed the certificate of title over to Allstate, be left the odometer statement on the certificate blank.
Allstate later obtained a New York salvage certificate for the vehicle. The certificate noted that the mileage on the vehicle was 13,149, that the body on the vehicle was damaged, and that the vehicle was a total loss.
Pancake purchased the damaged vehicle at a New York auction on October 12, 1987. Pancake transported the vehicle to Ohio and obtained an Ohio salvage certificate of title for it on October 14, 1987. This salvage certificate likewise noted that the odometer reading on the vehicle was 13,149.
Pancake sold the vehicle in its damaged condition to Jerry Ridarsky on October 17, 1987. In transferring the vehicle, Pancake certified that " o the best of knowledge, the Odometer reading reflects the actual mileage." The vehicle was subsequently transferred to other owners and eventually was sold by defendant Southern Park to appellant. When appellant purchased the vehicle from Southern Park in June 1990, the mileage registered on the odometer was 29,289.
On April 2, 1993, appellant filed an action against Southern Park alleging fraud, deceptive trade practices and violations of Ohio's odometer rollback and disclosure provisions. On August 24, 1993, appellant filed a second amended complaint adding Allstate and Pancake as defendants and additionally alleging violations of Ohio's Consumer Sales Practices Act on the part of Southern Park and also violations of the Federal Motor Vehicle Information and Cost Savings Act, Section 1981 et seq., Title 15, U.S. Code.
Appellant, Allstate, and Pancake filed motions for summary judgment.
Appellant's case against Allstate and Pancake rested upon the fact that they did not, when transferring the vehicle in question, certify that the actual mileage of the vehicle was unknown as Lombardi did when he transferred the vehicle to Allstate. Appellant also argued that Allstate improperly left the odometer statements blank on a number of instances.
Allstate and Pancake countered all of appellant's contentions by pointing out that there was no evidence that the vehicle did not have 13,149 miles on it when they transferred it. Pancake in particular noted that after he transported the vehicle back to Ohio, it underwent an out-of-state vehicle inspection by an agent of the state. Pancake noted that this inspection revealed no problem with the odometer or its reading, and revealed no evidence that the vehicle had been driven in excess of the 13,149 miles noted on the odometer.
The trial court subsequently overruled appellant's motion
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