Before Judges Carchman, Lefelt and Lintner.
The opinion of the court was delivered by: Carchman, J.A.D.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County.
This appeal requires us to address, among other issues, the question of whether multi-defendant liability under the Federal Odometer Law (FOL), 49 U.S.C.A. §§ 32701-32711, is joint and several or individual and separate. The trial judge concluded that such liability was individual and separate; we disagree, reverse and conclude that such liability is joint and several. We further conclude that consistent with the Supreme Court's decision in Wanetick v. Gateway Mitsubishi, N.J. (2000), on a retrial of this matter, the trial judge should instruct the jury as to the ultimate outcome of both a finding of liability on the FOL claim as well as plaintiff's claim for damages pursuant to the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -91 (CFA).
These are the facts adduced during the jury trial of plaintiff's cause of action. On October 28, 1993, plaintiff Michelle J. Roepke Cogar and her husband purchased a 1986 Buick Regal from defendant T & R Motors. Plaintiff was informed that the vehicle had low mileage of approximately 46,000 miles because it had been owned by an elderly woman whose husband had died. In fact, the vehicle had originally been owned by defendant Steven Maglio, who commuted, using the Buick, from Hazlet, New Jersey to New York City every other week for a period of six years. In 1992, he negotiated a trade-in of the vehicle with defendant Monmouth Toyota, receiving a trade-in value of $1000. When Maglio traded in the car, Monmouth Toyota inquired about the accuracy of the mileage. Maglio responded that the mileage was accurate stating: "Yes, it has to be. Whatever's on the clock has to be, has to be the mileage." The Monmouth Toyota salesman later told Maglio that mechanics had inspected the car and questioned whether the odometer accurately reflected the number of miles on the car. In fact, when Monmouth Toyota's mechanic, Kevin Andreach, inspected the vehicle he wrote, "Horrible, life threatening to drive," and, accordingly, refused to take the car for a test drive. Maglio indicated that he "[n]ever had cause to" look at the odometer while he owned the car. He admitted signing an odometer disclosure statement for the Buick along with at least a "dozen" other documents at the time of the trade-in, but indicated he did not really understand all the papers he signed.
Approximately a year after he traded in the Buick, someone called Maglio to inquire about its mileage:
And he said well, was the mileage, I think he said, I think I said 37,000. And I said I don't think so, it doesn't sound like enough because I had the car for a while. He said could it have been 137. And I said that sounds more likely, sounds more reasonable. I said why don't you just look at the clock and it will tell you how many miles are on it.
And he said that the clock was showing 37. He said was it possible that the clock could be going around a second time. And I didn't know what he meant. And he explained to me that on some cars it doesn't show the 100,000 miles. That the clock goes around twice and I didn't know that.
Maglio indicated that after this conversation he looked at the odometer disclosure statement and realized it was wrong because it indicated that the Buick had approximately 37,000 miles on it when he traded it in to Monmouth Toyota.
Approximately a week after purchasing the car in 1993, plaintiff received advice from a family friend who indicated that the Buick had significantly more than the 46,000 miles which showed on the odometer and had been represented to her by T & R Motors as the amount of mileage on the car. T & R Motors, through one of its owners, defendant Tom Scibeck, and an employee, defendant Lee Colefield, told plaintiff that they would return her deposit if she could prove that the car had more than 46,000 miles on it. Plaintiff obtained "proof" in the form of a report from a mechanic; however, when presented with this report, T & R Motors refused to return the deposit.
Plaintiff attempted, unsuccessfully, to return the car one more time. At that same time, she learned that T & R had obtained the car from defendant Tom's Ford.
Plaintiff drove the car for approximately two weeks after she purchased it but then stopped driving it because she "did not feel safe" as the "car was smoking terribly," and the doors were difficult to close. Additionally, she could not register it because she refused to pay the balance of the deposit. She subsequently had the car towed to the State Police in Bordentown for inspection where it remained for four months.
The vehicle's chain of title was determined as a result of an investigation by the State Police. The results of the investigation were as follows: Steven Maglio purchased the vehicle with 15 miles on it in 1986; Monmouth Toyota then received the title on November 6, 1992, with a represented 37,464 miles; All-star Leasing Systems acquired it on December 4, 1992, with 37,473 miles; Kathleen Conklin then obtained title to it on December 22, 1992, with 37,700 miles; Tom's Ford next assumed title to it in October 1993, with 46,600 miles; and T & R Motors received it with 46,623 miles. After conducting an investigation, Sergeant O'Malley of the State Police concluded that "the odometer had actually rolled over once to where all zeros appeared on the odometer." He additionally concluded that either Maglio or Monmouth Toyota was responsible for the incorrect representation regarding the mileage.
The car remained in plaintiff's parents' yard for four years. She did not drive it, but it was insured for two of those years. During that period, plaintiff rented cars and secured transportation from friends. She purchased another car within a month; however, that car was unreliable, and she claimed that she did not have use of any car for a total of sixty-six days. Plaintiff made only two loan payments to the company which had financed the purchase of the vehicle.
On April 21, 1994, plaintiff filed a complaint against defendants alleging violations of both the CFA and FOL together with a claim for breach of contract. The matter proceeded to trial at which time plaintiff's expert concluded that when he inspected the car, he determined that it was unsafe and likely had been driven well over 100,000 miles, perhaps as many as 145,000 miles. He opined that "anybody with automobile knowledge would have known immediately that this car couldn't possibly have such low mileage." Monmouth Toyota's mechanic, indicated, however, that to determine the actual mileage of the car would be pure speculation, ...