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Fraud Claims Cannot Be Based on Puffery

            Most businesses that sell products or services encourage their salesmen to do whatever it takes to make a sale.  This leads to the salesmen exaggerating regarding the quality of the product or service they are selling.  Although exaggerations or statements promoting the quality of a product or service can lead to increased sales, it could also be problematic for businesses.  Customers who rely on such statements when purchasing a product or service can be severely disappointed if the product or service does not live up to salesman’s exaggerations, and this often leads to lawsuits for fraudulent misrepresentations or fraud in the inducement.  Fortunately, Florida law provides a useful avenue to defend against these types of fraud lawsuits.  To allege a claim for fraud, a person must demonstrate that a seller made a “misrepresentation of material fact.” Florida courts have consistently held that a seller’s exaggerations or statements of opinion, otherwise known as puffery, cannot constitute a misrepresentation of material fact.  The leading case on this issue in Florida is Wasser v. Sassoni, 652 So. 2d 411 (Fla. 3d DCA 1995).

            In Wasser, the purchaser of a 67-year-old apartment building sued the seller for, inter alia, fraudulent misrepresentation based on the seller’s statements that the building was “a very good building” requiring “normal type of maintenance,” and “an excellent deal.” The Third District Court of Appeal found that such statements were merely “puffing” or statements of opinion that could not constitute fraudulent misrepresentations.  Based on the foregoing, the court affirmed summary judgment in favor of the seller.

            More recently, the Fourth District Court of Appeal was confronted with a fraud claim based on puffery in MDVIP, Inc. v. Beber, 2017 WL 2364729 (Fla. 4th DCA May 31, 2017).  The plaintiff brought suit against a personalized healthcare program after a doctor employed by the program failed to diagnose and misdiagnosed the plaintiff’s leg pain, forcing the plaintiff to undergo an above-the-knee amputation. The plaintiff’s fraud claim was based on the defendant’s statements that it would provide “exceptional doctors, exceptional care, and exceptional results.” The plaintiff also alleged the defendant made promises that the plaintiff “would be seen by the finest national specialists with advanced treatment” and defendants claimed to be “a network fraternity of some of the nation’s finest physicians,” among other things.  In making its decision, the court relied in part on Wasser and determined that the plaintiff’s fraud claims could not be maintained to the extent they depended on defendant’s alleged statements, as such statements constituted non-actionable puffery or statements of opinion.

            Although fraud claims based on puffery will usually be disposed of by the court, businesses still must be cautious when using puffery or statements of opinion to make sales.  In Mejia v. Jurich, 781 So.2d 1175 (Fla. 3d DCA 2001), the court provided an exception to the general rule that fraud claims cannot be based on statements of opinion.  Mejia states:

Where the person expressing the opinion is one having superior knowledge of the subject of the statement and the plaintiff can show that said person knew or should have known from facts in his or her possession that the statement was false, then the opinion may be treated as a statement of fact.

            The Mavrick Law Firm has successfully represented many businesses in fraud cases as well as other business litigation cases throughout the Miami-Dade, Broward, and Palm Beach County areas encompassed by the Third and Fourth District Courts of Appeal, as well as Hillsborough, Sarasota, and other counties encompassed by the Second Circuit Court of Appeals.  This article is not a substitute for legal advice tailored to a particular situation.  Peter T. Mavrick can be reached at: Website:; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311.

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