When Is the Fine Print Too Fine?

There is an old maxim that, “What big print giveth the fine print taketh away.” In a case involving a used car sale, our Georgia Supreme Court this week said, “not so fast.”

To make out a claim at common law for fraud, a plaintiff must show not only that he relied upon some misrepresentation, but he must show as well that his reliance was reasonable or justifiable.  In the case of Raysoni v. Payless Auto Deals, LLC, 2014 WL 6090438, decided by the Supreme Court of Georgia on November 17, 2014, the question was whether reliance upon a used car salesman’s representations was reasonable despite fine print disclaimers.

Mr. Raysoni went to a used car lot. He asked a salesman whether the vehicle in which he was interested had ever been in a wreck or damaged. The salesman told him it had not, and gave a Carfax report that showed no damage to the vehicle and no indication that it had been involved in any wreck. Relying on these representations, he bought the vehicle. A couple of months later, Raysoni learned that the minivan, in fact, had been in a wreck and had sustained frame damage as a result.

When he attempted to return the vehicle and rescind the purchase, the used car dealer refused. It relied upon fine print in the sales contract, which included, “NO SALESMAN VERBAL REPRESENTATION IS BINDING ON THE COMPANY,” “CUSTOMER SHOULD NOTE THAT THIS VEHICLE WAS ANNOUNCED HAVING UNIBODY DAMAGE AT THE AUCTION,” and “WE STRONGLY RECOMMEND CUSTOMERS SHOULD GET VEHICLE INSPECTED BY A MECHANIC OF THEIR CHOICE BEFORE MAKING THE PURCHASE.”

Finding it was a jury question whether reliance upon the salesman’s representations was reasonable, Justice Keith Blackwell noted for the Court:

No one should make the mistake of thinking, however, that capitalization always and necessarily renders the capitalized language conspicuous and prominent. In this case, the entirety of the fine print appears in capital letters, all in a relatively small font, rendering it difficult for the author of this opinion, among others, to read it. Moreover, the capitalized disclaimers are mixed with a hodgepodge of other seemingly unrelated, boilerplate contractual provisions—provisions about, for instance, a daily storage fee and a restocking charge for returned vehicles—all of which are capitalized and in the same small font.

Plaintiff’s lawyers estimated the font size of that fine print was 5.6.  I dare you to read anything in 5.6 font without a magnifying glass.

Kudos to my friends Mike Flinn of Carrollton and Charles Cork of Macon for their diligence in taking this consumer issue to the Supreme Court. While I generally refer “lemon car” cases to Mike Flinn, the judicial disapproval of obscure fine print to contradict a salesman’s representations to a consumer.

The case vaguely reminds me of a one I tried in my past life as an insurance defense lawyer. In an employee dishonestly insurance claim by a car dealer, I was representing the insurance company in its own name. My chief witness was the bean-counting dweeb of a claims adjuster from central casting. And my task was to try to persuade the jury that a used car salesperson was honest despite overwhelming and incontrovertible evidence to the contrary. I never understood why the insurer I represented didn’t just settle that case.  It was not much fun to stand up and take that beating.

Ken Shigley is an Atlanta-based personal injury and wrongful death trial lawyer. He is past president of the State Bar of Georgia, chair-elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, and a board certified civil trial attorney of the National Board of Trial Advocacy.