Mark Oberholtzer is the owner of a successful Texas plumbing company: Mark-1 Plumbing. One of the company’s plumbing trucks, a 2005 Ford F-250 pickup, had reached the end of its useful life. So Oberholtzer took it to the nearby AutoNation Ford Gulf Freeway dealership and traded it in on a new 2012 Ford F-250 pickup. Fourteen months later, Oberholtzer was traveling when he received a frantic call from his secretary. She reported that the company’s old 2005 F-250 truck was all over the news — and the phone was ringing off the hook with angry callers. News stories were showing a picture of their old truck with an anti-aircraft gun mounted in the bed, fighting on the front lines near Aleppo, Syria. Its new owners, the Ansar al-Din jihadists, were using it to shoot up their victims. Mark-1’s name and phone number were still on the door of the truck, clear as a bell, prominently displayed in the photos. By the end of the day, the Mark-1 office had received over 1,000 phone calls from angry citizens all around the country. The callers threatened violence, property damage, injury and death — all directed at Mark-1, its employees and their families. Oberholtzer quickly returned to the office, and met four agents from Homeland Security. He was not allowed to leave the premises for the duration of their two-hour investigation. The Homeland Security agents accepted his explanation that he had traded the truck for a new one long ago. The agents left with the ominous warning that “there are crazy people out there” and he should be careful to “protect himself at all times.” Mark-1 employees were shaken and feared for their lives. Oberholtzer shut the business down completely for seven days — at a loss of substantial revenues — and left town for a long week to escape the situation.

Paparazzi and fame

Mark-1 staffers became instant celebrities. Local and national TV stations and reporters kept asking for interviews, videotaped them in their personal vehicles — and showed up at their homes for surprise interviews. The story had gained so much traction that it became the subject of the opening segment on the final episode of “The Colbert Report” TV show, watched by almost 2.5 million viewers. The story was dubbed “Texan’s Truck in Syria.” Colbert told viewers that Syria “is going down the toilet, but for the first time, they know who to call to unclog it.” The photo of the truck came on the screen, and an announcer explained how one of the old Mark-1 Plumbing trucks had become an anti-aircraft firing weapon on the front line in Syria. Zooming in on the door, the announcer pointed out “Mark’s company logo and his phone number, still clear as day on the side of that truck.”

The road to Aleppo

How did this plumbing truck end up becoming such a famous terrorist weapon? If you haven’t noticed, the world has gotten a lot smaller. The dealer decided it didn’t want to inventory the truck, so they just sent it to the local auto auction. The high bidder at the auction was a small dealer in Houston, who put it on his lot and listed it on his website. The Houston dealer received an inquiry from a purchaser in Turkey who wanted to buy this and another truck — and promised to send money and a transporter to pick them up. For many of us, this is now starting to sound like a common Internet scam where the money never comes but the seller gets fleeced somehow. But unbelievably, the money and the transporter did come, the paperwork got done, and the truck was exported from Houston to Mersin, Turkey. From there, it’s about a five-hour drive to Aleppo.

Litigation ensues

So one’s first question might be, why would Oberholtzer be so dumb as to leave the signs on the truck? The answer to that question is at the core of the resulting lawsuit. Oberholtzer’s story was that he started to remove the signs when he traded in the truck. The AutoNation salesman stopped him and expressed worry that he might damage the paint. The salesman said the dealership had a special solvent that would be better for the removal — and that they would take care of it. Obviously, they didn’t take care of it, and the truck went on its journey with its signage intact. Mark-1 filed suit against the dealer, alleging liability for negligence, fraud, misrepresentation, libel, appropriation of trade name and violation of the Texas Deceptive Trade Practices Act. Oberholtzer sought damages of over $1 million.

Tricky legal theories

The most obvious claim is the one that was not made — breach of contract. Oberholtzer claimed that the salesman agreed to remove the signage but failed to do so. That would pretty clearly be a breach of contract. However, “Legal Files” sees two major problems with that claim: First, the sale agreement Oberholtzer signed contained a mandatory arbitration provision that would apply to all claims involving the purchase transaction. That would have likely forced the breach-of-contract claim into arbitration. A purchaser in Oberholtzer’s position is generally better off in court than in arbitration. Second, damages in a breach-of-contract action could be limited. When a party to a contract fails to do something they promised to do, damages are usually what it costs to have someone else do it. That wouldn’t have been much at all in this case. The bad things that happened here are all indirect and fall into the category of “consequential damages.” To be recoverable, consequential damages have to be foreseeable, and many contracts provide that consequential damages are not recoverable at all. So Oberholtzer and his attorney probably believed he had to cast his claims in the negligence and fraud realm to cover both those bases. And, once he did that, it got him into the Deceptive Trade Practices Act, which has the added bonus of entitling him to recover his attorney fees incurred in the litigation, which would not have been recoverable any other way.

Foreseeable harm?

No matter the nature of the claim, the main issue has to be the foreseeability of the harm. It isn’t enough to connect all the dots and have them lead from the failure to remove the signage to the truck being featured on “The Colbert Report.” Even though it was an unbroken chain, the law requires more. To be actionable, the harm has to be something that a reasonable person standing in the defendant’s shoes could reasonably predict would occur as a result of their failure to do what they should have done. It isn’t all that clear that foreseeability would stretch all the way from Texas to Aleppo. If it’s too far a stretch, then it isn’t actionable. So what would a reasonable person predict here? If the truck had been used to defraud innocent plumbing customers, and they believed they were dealing with Mark-1, sure, that’s foreseeable. But could someone have predicted, at the time of the failure to remove the signage, all of what actually happened afterward? That would take a pretty vivid imagination. If it had to be too vivid, the damages would be too remote from the negligence, and therefore not recoverable.

Outcome and lessons

The litigation was settled before trial in a confidential settlement. We have no way of knowing the terms of the settlement, but it does seem apparent that a settlement was a good idea for both parties. Oberholtzer, Mark-1 and its employees went through a lot because of their unexpected notoriety. If a jury believed that the salesman promised to remove the signage from the truck, the dealer could have been hit with a huge damage claim. But Mark-1 faced the risk that the harm was too unpredictable at the time of the error — and then recover nothing. Worse yet, Mark-1 could have won the case and then lost it on appeal, with the appellate court reversing the jury verdict due to a lack of foreseeability. That would have resulted in a huge legal bill with nothing to show for it. What we can all take from this case is this: When we sell a car, we should remove everything we can from the car that identifies us in any way. Seeing your signage on a terrorist truck is not very likely, but documents, receipts and other items that identify you can lead to undesirable contacts from future purchasers or users. It pays to take the time to sanitize the vehicle yourself, as you can’t really trust anyone else to do it for you. ♦ JOHN DRANEAS is an attorney in Oregon. His comments are general in nature and are not intended to substitute for consultation with an attorney. He can be reached through

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