Unpublished Disposition, 895 F.2d 1419 (9th Cir. 1986)

MEMORANDUM^* 

Plaintiff-appellant Frank Watkins appeals the judgment against him after a bench trial on his claim against defendant-appellee Benjamin Lowe¹  under Subchapter IV of the Motor Vehicle Information and Cost Savings Act, 15 U.S.C. § 1981 et seq. Watkins sued the Lowes under 15 U.S.C. § 1989 for treble damages and attorney's fees based on the Lowes' alleged misrepresentation of mileage on a used car he purchased from them.

FACTS

The following facts were found by the district court or are not controverted. Watkins is a used car salesman with over twenty years experience. Watkins purchased a 1982 Cadillac Eldorado from Randall Lowe ("Randall") on September 10, 1986 intending to resell it. Watkins went to the office of Benjamin Lowe ("Lowe") on September 11, 1986 to complete the sale. Randall is in the insurance business and Lowe is in the construction business. Lowe was the lessee of the car, which he had given over to Randall for the latter's use. Lowe prepared a bill of sale but sent Watkins to T & T Leasing, the owner of the car, to have all other necessary sale documents signed.

There was conflicting testimony whether Lowe or Randall ever affirmatively represented the car's mileage to Watkins, either by reference to specific mileage or by describing the car as a "low mileage" vehicle. The district court concluded that no affirmative misrepresentations were made. In actuality, the car's odometer had "turned over" after reaching 99,999 miles, and therefore the mileage disclosed by the odometer was 100,000 miles less than what the car had actually traveled. Lowe knew the odometer had turned over. The service records for the car left in the glove compartment when it was delivered to the purchaser revealed that the odometer had turned over.

T & T Leasing told Watkins that Lowe was actually the correct person to sign the remaining documents. Watkins returned to Lowe's office to obtain his signature. Watkins presented Lowe with a form entitled "Notice of Sale or Transfer of a Vehicle or Vessel and Odometer Mileage Statement." Watkins himself filled in the box labeled "odometer reading (total miles)" with the number 31,707. He then had Lowe sign the form and fill in a section reading, "I, Benjamin Lowe, state that the odometer of the vehicle described above now reads 31,707 miles/kilometers." Watkins then checked two boxes on the form. The first box read: "I hereby certify that to the best of my knowledge the odometer reading as stated above reflects the actual mileage of the vehicle described above." The second box read: "I hereby certify that the odometer of said vehicle was not altered, set back, or disconnected while in my possession, and I have no knowledge of anyone else doing so."²  Watkins' and Lowe's testimony conflicts as to whether Lowe was asked, or whether he verified the contents of the form after Watkins completed it. The district court concluded that this evidence did not establish intent to defraud.

ANALYSIS

Watkins filed suit against Lowe under Subchapter IV of the Motor Vehicle Information and Cost Savings Act, 15 U.S.C. § 1981 et seq. 15 U.S.C. § 1988(a) mandated the issuance of rules by the Secretary of Commerce requiring

any transferor to give the following written disclosure to the transferee in connection with the transfer of ownership of a motor vehicle:

(1) Disclosure of the cumulative mileage registered on the odometer.

(2) Disclosure that the actual mileage is unknown, if the odometer reading is known to the transferor to be different from the number of miles the vehicle has actually traveled.

The form used by Watkins and Lowe in this case was patterned after rules prescribed under the mandate of this section. 49 C.F.R. Sec. 580.4. 15 U.S.C. § 1988(b) provides:

No transferor shall violate any rule prescribed under this section or give a false statement to a transferee in making any disclosure required by such rule.

15 U.S.C. § 1988(c) imposes an obligation upon individuals such as Watkins, who acquire an automobile for purpose of resale, to obtain a complete written mileage disclosure. A seller must use reasonable care to assure the odometer disclosure statement is accurate. Tusa v. Omaha Auto Auction Inc., 712 F.2d 1248, 1253 (8th Cir. 1983).

15 U.S.C. § 1989 provides for civil liability in the case of a violation of these requirements. A prevailing plaintiff may recover three times the amount of actual damages sustained or $1,500, whichever is greater, as well as costs and attorney fees.³  However, this section requires that the violation by the defendant be "with intent to defraud." It is the district court's finding that Lowe lacked an intent to defraud which Watkins challenges on appeal. This is a finding of fact which we review under the clearly erroneous standard. Fed. R. Civ. P. 52(a); Losner v. Union Bank, 374 F.2d 111, 112 (9th Cir. 1967) (per curiam).

The Motor Vehicle Information and Cost Savings Act is a regulatory, remedial statute which should be construed broadly. See Ryan, 592 F.2d at 760. Hughes v. Box, 814 F.2d 498, 501 (8th Cir. 1987). The mileage of a used car is a prime determinant of its value. Buyers have little ability to discover the true mileage of a car themselves. For that reason, they must rely on the odometer and on representations of the car's mileage made by the previous owner. 15 U.S.C. § 1081; Hughes, at 501.

This has caused this court considerable concern. However, we conclude that the court was not clearly erroneous on the facts of this case. The determination was made essentially based on credibility of witnesses which is uniquely the province of the trier of fact. Watkins, himself a seller of used cars, is not a typical buyer. Benjamin Lowe, who had little to do with the sale of the car, is not a typical seller.

The district court's finding that Lowe did not intend to defraud Watkins was not clearly erroneous. We affirm.

AFFIRMED.