Section 8.3 Relief and Remedies in General

• Library: Tort Law 2016

B. (§8.3) Relief and Remedies in General

The victim of a fraudulent misrepresentation may sue for actual, special, and—upon proof of actual damage and outrageous conduct—punitive damages. See:

· McCall v. Jim Lynch Cadillac, Inc., 791 S.W.2d 456, 458 (Mo. App. E.D. 1990) ("A plaintiff’s recovery is not limited to general damages, but a plaintiff may also recover special damages necessarily incurred solely by reason of the fraud.")

· Werremeyer v. K.C. Auto Salvage Co., 134 S.W.3d 633, 635 (Mo. banc 2004) (upholding a punitive damage award against the dealership and auctioneer for fraudulently misrepresenting a vehicle’s lineage when conduct evinced "intentional malice, trickery, or deceit") (quoting State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419 (2003))

· Williams v. Williams, 99 S.W.3d 552 (Mo. App. W.D. 2003) (nominal damages will not support a punitive damage award in a fraud case)

Of course, for the plaintiff to recover, the defendant’s misrepresentation must have proximately caused the plaintiff’s damages. See, e.g., Mprove v. KLT Telecom, Inc., 135 S.W.3d 481, 490 (Mo. App. W.D. 2004).

Rather than seek damages, however, the victim may choose from three alternate remedies:

1. Rescind the contract or transaction

2. Affirm the contract and seek the difference in value between what was promised and what was delivered

3. Recover for breach of contract and tort

See:

· Davis v. Cleary Bldg. Corp., 143 S.W.3d 659, 668 (Mo. App. W.D. 2004)

· Harris v.

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