5th Cir. Pattern Jury Instr. (Civil) 13.2

330

to the vehicle’s actual mileage. Mere negligence or

carelessness about whether the odometer reading is accurate is not enough to make a defendant liable.

Plaintiff [name] must show by a preponderance of the

evidence that [Defendant [name]] [Defendant [name]’s

agent] either knew that the odometer reading was inaccurate or at least acted with reckless disregard about

whether the vehicle’s odometer reading was inaccurate.

5

If a preponderance of the evidence does not support

Plaintiff [name]’s claim, then your verdict should be for

Defendant [name]. If, however, a preponderance of the

evidence does support Plaintiff [name]’s claim, then

[he/she] would be entitled to recover either three times

the amount of actual damages the evidence shows [he/

she] sustained, or $10,000, whichever is greater.

6

(Insert general instruction on actual or compensatory damages.)

The actual damages are measured by the difference between the amount Plaintiff [name] paid for the

vehicle and the fair market value of the vehicle on the

date of sale with its actual mileage disclosed and such

5See, e.g. , Suiter v. Mitchell Motor Coach Sales, Inc. , 151 F .3d 1275,

1282 (10th Cir. 1998) (“[A] transferor need not have actual knowledge that

the odometer statement was false before liability may be imposed. Rather,

intent to defraud may be inferred if a transferor lacks such knowledge

only because he ‘‘ ‘display[ed] a reckless disregard for the truth’ ” or

because he ‘‘ ‘clos[ed] his eyes to the truth.’ ” (alterations in the original)

(quoting Haynes v. Manning , 917 F .2d 450, 453 (10th Cir. 1990) (per

curiam)); Nieto v. Pence , 578 F .2d 640, 642 (5th Cir. 1978) (holding that

recklessness or gross negligence in determining or disclosing actual mileage is enough for the factfinder to infer intent to defraud).

6Title 49 U.S.C. § 32710(a) allows a plaintiff to recover three times

the amount of actual damages sustained or $10,000, whichever is greater.

These instructions may be used to have the jury apply the statutory

directive. Another approach is for the jury to be directed simply to

determine the amount of actual damages and the court applies the statutory formula. That is recommended in the 8th Circuit Manual of Model

Civil Jury Instructions (2019) (Instruction 19.70). The amount was

increased from $1,500 to $10,000. See 49 U.S.C. § 32710(a), amended by

Pub. L. 912–141 (July 6, 2012).

13.2MISCELLANEOUS FEDERAL CLAIMS

331

additional sums you find will fairly compensate Plaintiff

[name] for any other damages sustained, including

[specify appropriate other actual damages].

7

After you determine Plaintiff [name]’s actual damages, you would then multiply by three and enter the

resulting amount on your verdict form. If that calculation results in a figure less than $10,000, then you

would enter the sum of $10,000 as Plaintiff [name]’s

damages.

(Insert instruction on attorney’s fees and costs if

appropriate.)

8

7Title 49 U.S.C. § 32710(a) would permit, for example, an award of

such expenses as repair bills for defects that are directly related to the

car’s higher mileage and overpayment of insurance premiums and licensing fees attributable to the vehicle’s inflated value due to the lower mileage reading, provided that these expenses are legitimately attributable to

the defendant’s acts that violated the statute. See, e.g. , Duval v. Midwest

Auto City, Inc. , 425 F . Supp. 1381, 1388 (D. Neb. 1977) (defining “actual

damages” under the odometer-fraud statute to be the meaning commonly

applied to fraud cases, i.e., the difference between the amount plaintiff

paid and the fair market retail value of the vehicle with number of miles

actually traveled, plus such outlays as are legitimately attributable to acts

of the defendant), aff’d, 578 F .2d 721 (8th Cir. 1978); Oettinger v. Lakeview

Motors, Inc. , 675 F . Supp. 1488, 1496 (E.D. Va. 1988) (same); Williams v.

Toyota of Jefferson, Inc. , 655 F . Supp. 1081, 1085 (E.D. La. 1987) (same);

Beachy v. Eagle Motors, Inc. , 637 F . Supp. 1093, 1095–96 (N.D. Ind. 1986)

(same); Gonzales v. V an’s Chevrolet, Inc. , 498 F . Supp. 1102, 1103–04 (D.

Del. 1980) (same); see also Farmers Co-op. Co. v. Senske & Son Transfer

Co., 572 F .3d 492, 498 (8th Cir. 2009) (‘‘ ‘[A]ctual damages’ include (1) the

purchase price of the vehicle less its [fair market value] given the vehicle’s

actual mileage, and (2) any expenses shown to be attributable to the

defendant’s wrongful acts.”).

8Title 49 U.S.C. § 32710(b) permits an award of reasonable attorney’s

fees and costs to a prevailing plaintiff.