Rush, J.
An auto dealership’s advertisement of an inexpensive used car as a “Sporty Car at a Great Value Price,” is textbook puffery—not actionable as deception or fraud, because a reasonable buyer could not take it as a warranty about the car’s performance or safety characteristics. But when the dealer has inspected the car and should know it has serious problems, answering a buyer’s question about why it idled roughly by claiming that it “would just need a tune-up” may be actionable as fraud. We therefore hold that the buyer’s fraud claim survives summary judgment, even though her deception claims cannot.
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Since puffing is merely a statement of opinion, Rispens, 621 N.E.2d at 1082–83, it cannot be a representation of fact—and thus, cannot be “deceptive” under the DCSA. The trial court correctly entered summary judgment for Hubler on this issue.
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While deceptive advertising is certainly detrimental to the public, treating these “puffing” statements as actionable representations would have undesirable consequences as well. Construing either “Sporty Car” or “Great Value Price” as a representation of fact is at best a double inference—first, taking the ad to “impl[y] that the Eclipse was a good car for the price” (as opposed to simply being inexpensive), and second, inferring from the first inference that the car was “thus, at a minimum, safe to operate.” Kesling, 975 N.E.2d at 372.
Allowing a deception claim to be based upon such a double inference is problematic under both the civil and criminal statutes. First, we recognize that the DCSA must be liberally construed, but only so far as its purpose of “protect[ing] consumers from suppliers who commit deceptive and unconscionable sales acts,” I.C. § 24-5-0.5-1(b) (emphasis added). It does not extend to protecting consumers from themselves. Yet that is essentially what Kesling seeks—not merely for suppliers to anticipate what consumers might infer from an advertisement itself (which, again, is the implied-representation question we reserve for another day), but to further anticipate what consumers might then secondarily infer from their own inferences. Such a requirement would exceed the stated purpose of the statute, and demand an unrealistic degree of intuition about consumers’ subjective perceptions.
The double-inference concern is an even greater problem under the criminal deception statute. A criminal statute is unconstitutionally vague “if its prohibitions are not clearly defined,” or “its terms invite arbitrary or discriminatory enforcement.” Klein v. State, 698 N.E.2d 296, 299 (Ind. 1998) (citing Grayned v. City of Rockford, 408 U.S. 104, 108 (1972) and Kolender v. Lawson, 461 U.S. 352, 357 (1983)). It is difficult to imagine how an advertiser could “know” an advertisement is deceptive as the statute requires, I.C. § 35-43-5-3(a)(9), if that inquiry requires them to “know” what inference upon inference (and perhaps further inference beyond that, and beyond that again) any given member of the public might draw.
Finally, the Court of Appeals’ approach would significantly impede legitimate advertising. The majority observed that “‘Sporty Car at a Great Value Price’ goes beyond a bare ‘1996 Mitsubishi Eclipse for $2981,” and that if Hubler had “merely listed the vehicle’s specifications and features, Kesling likely would not have a viable case.” Kesling, 975 N.E.2d at 372, 374. But advertising need not be limited to a product’s “name, rank, and serial number” in order to have a safe harbor against civil or criminal liability. Cf. Passmore v. Multi-Mgmt. Servs., Inc., 810 N.E.2d 1022, 1028 (Ind. 2004) (expressing concern that “declaring employers liable for negligence in providing employment references will lead universally to employer reluctance to provide any information other than name, rank, and serial number”). While advertisements may not be deceptive, they need not refrain from any expression of the seller’s opinion, either. Hubler’s “puffing” simply is not the stuff of a deception claim.
II. Kesling’s Common Law Fraud Claim.
Kesling’s common-law fraud claim is based on the salesperson’s claim that the car “would just need a tune-up,” rather than on Hubler’s ad. As a result, her fraud claim fares better than her deception claims. The elements of common-law fraud are “(1) a material misrepresentation of past or existing fact which (2) was untrue, (3) was made with knowledge of or in reckless ignorance of its falsity, (4) was made with the intent to deceive, (5) was rightfully relied upon by the complaining party, and (6) which proximately caused the injury or damage complained of.” Lawyers Title Ins. Corp. v. Pokraka, 595 N.E.2d 244, 249 (Ind. 1992). And unlike deception, “fraud is not limited only to affirmative representations; the failure to disclose all material facts can also constitute actionable fraud.” Lawson, 902 N.E.2d at 275. In particular, “[w]hen a buyer makes inquiries about the condition, qualities, or characteristics of property,” the seller must “fully declare any and all problems associated with the subject of the inquiry,” or else risk liability for fraud. Id. (internal quotation marks omitted) (finding “textbook case of fraud” where seller told buyer that a tractor leaked oil and gas, but claimed to know nothing else about it, when he in fact knew the engine block had cracked and been welded).
Those settled principles are enough for Kesling’s fraud claim to survive summary judgment. It is undisputed that Kesling asked the salesperson why the car’s idle was rough—and while there is some dispute about the precise response, the evidence most favorable to Kesling is that the salesperson told her the car “would just need a tune-up” because “it had been sitting for a while.” Regardless of whether that statement was qualified with the word “probably,” as some of the evidence suggests, “just need[s] a tune-up” can reasonably be understood as a representation of past or existing fact—as can the supporting claim that the car “had been sitting for awhile.” And a jury could reasonably find both claims untrue, because the car needed extensive repair and not just a tune-up, and because the car had been taken on trade just two weeks before and hadn’t really “been sitting for awhile.”
Similarly, there is evidence to support an inference that the salesperson knew his statements to be false, but made them anyway with intent to deceive Kesling. Hubler admitted that it inspected the car when it accepted it on trade, so the salesperson as Hubler’s agent may be inferred to have at least constructive knowledge of the inspection—and of the car’s defects, which reportedly would have been obvious to anyone who would have inspected or serviced the car at a dealership. Failing to disclose those defects and instead representing that the car “would just need a tune-up” not only permits an inference of fraudulent intent, but also runs afoul of the related duty to “fully declare any and all problems associated with the subject of” a buyer’s inquiry “about the condition, qualities, or characteristics of property.” Lawson, 902 N.E.2d at 275.
Finally, the summary judgment record shows a genuine issue of fact as to Kesling’s reliance on the salesperson’s statements. In her deposition, Kesling stated that she offered less than the asking price for the car because of the statement that the car needed a tune-up—in other words, that she relied on that statement in deciding how much she was willing to pay for the car. To be sure, other evidence implies that she didn’t actually rely on the statement—for example, taking the car to have its computer-diagnostic codes read immediately after purchase—but on summary judgment, we may only consider the evidence in the light most favorable to Kesling. Nor is she barred from claiming reliance because of signing an acknowledgement that she was buying the car “AS IS—NO WARRANTY . . . regardless of any oral statements about the vehicle.” An as-is provision disclaims implied warranties, but it “provides no insulation from fraudulent misrepresentations.” Fimbel v. DeClark, 695 N.E.2d 125, 128 (Ind. Ct. App. 1998), trans. denied; see also Lawson, 902 N.E.2d at 274–76 (allowing fraud claim for nondisclosure of cracked engine block to proceed, even though “as-is” disclaimer barred any claim for breaching implied warranty of merchantability).
Conclusion
Mere “puffing” is a statement of opinion, not a representation of fact, and thus cannot be the basis of deception or fraud claims. But stating that a car “would just need a tune-up,” in the face of actual or constructive knowledge that it had far more serious problems, does represent a fact—and therefore may be the basis of a fraud claim when a seller gives it as a knowingly incomplete answer to a buyer’s specific question. Accordingly, we affirm the trial court’s grant of summary judgment in favor of Hubler as to Kesling’s Deceptive Consumer Sales Act and Crime Victim’s Relief Act claims; reverse its grant of summary judgment as to Kesling’s fraud claim; and remand to the trial court for further proceedings not inconsistent with this opinion.
Dickson, C.J., and Rucker, David, and Massa, JJ., concur.