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Thiedemann v. Mercedes-Benz USA.5/18/2005
Argued January 19, 2005
The New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to --20, authorizes a private cause of action when a plaintiff has suffered an "ascertainable loss of moneys or property, real or personal" as a result of a practice in violation of the CFA.
N.J.S.A. 56:8-19. This appeal focuses on the enigmatic requirement of an "ascertainable loss" and, specifically, on what a plaintiff must demonstrate in order to survive a motion for summary judgment when challenged on that issue. We hold that when a plaintiff fails to produce evidence from which a finder of fact could find or infer that a plaintiff suffered a quantifiable or otherwise measurable loss as a result of the alleged CFA unlawful practice, summary judgment should be entered in favor of defendant, as the trial court here correctly held. We therefore reverse the contrary judgment of the Appellate Division. Thiedemann v. Mercedes-Benz USA, LLC, 369 N.J. Super. 402 (App. Div. 2004).
I.
A.
Plaintiff Kenneth Thiedemann filed this matter as a class action against defendant Mercedes-Benz USA. The complaint asserted that the fuel sending units in certain Mercedes-Benz vehicles contained a serious and hazardous latent design defect resulting in (1) violation of the CFA; (2) breach of the implied warranty of merchantability under N.J.S.A. 12A:2-314; and (3) violation of Section Ten of the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act, 15 U.S.C.A. ยงยง 2301 to 2312. Allegedly eight models of Mercedes-Benz automobiles manufactured between the years of 1998 and 2000 contained defective fuel sending units, which would cause the dashboard fuel gauge to reflect inaccurately the amount of gasoline in the fuel tanks and place consumers at risk of "sudden, unexpected, and dangerous operational failure of their automobiles" due to the "sudden, unexpected, and dangerous depletion of fuel." Plaintiffs contended that defendant was aware of the defect, but did not make owners and lessees aware of it and, more specifically, that defendant "knowingly concealed, suppressed, and omitted to disclose the fuel sending unit defect, with the intent that others rely upon such concealment."
Plaintiff moved for class certification. Defendant opposed this motion, and also moved for dismissal of the individual claims of the putative class representatives. Although defendant admitted during discovery that there were 43,039 fuel sending unit failures prior to August 28, 2001, in several 1998 -- 2000 vehicle models, it nevertheless contended that the company's actions to repair and replace problem units, taken in compliance with its warranty program, eliminated any loss for plaintiffs. Accordingly, defendant asserted that because the plaintiffs failed to demonstrate an "ascertainable loss" that was prerequisite to their right to a private CFA action, plaintiffs' CFA claim must be dismissed. Defendant asserted further that because plaintiffs failed to present a prima facie CFA claim, the other claims under the Uniform Commercial Code or the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act failed as well. The trial court granted judgment to defendant; however, the Appellate Division reversed and reinstated plaintiffs' complaint. Thiedemann, supra, 369 N.J. Super. at 414. We granted certification, 181 N.J. 547 (2004), to review whether plaintiffs had made out a case that could withstand defendant's motion for summary judgment in respect of the issue of ascertainable loss. In that review, the non-movant plaintiffs shall receive all reasonable and favorable inferences that the record can support. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995).
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