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Thiedemann v. Mercedes-Benz USA.5/18/2005
t indulgent standard that plaintiffs must satisfy is the notion of an ascertainable loss within the meaning of the New Jersey Consumer Fraud Act. Here, no rational fact finder could conclude that plaintiffs suffered an objectively ascertainable loss or damage, even under the lens of the expansively protective legislative purpose of the Consumer Fraud Act and this State's public policies affording broad protection to consumers against deceptive commercial practices.
The motion record contains neither expert proof of diminution of value of any of plaintiffs' property or objective expectations, nor evidence of their out-of-pocket expenses causally connected with the claimed defect perpetrated by defendant. Plaintiffs' situations are quite unlike the circumstances of the plaintiff in Cox v. Sears Roebuck & Co., 138 N.J. 2 (1994)[,] where Cox's kitchen remained unrepaired throughout the entire dispute, unlike here, where each plaintiff received a warranted full remediation effort and each motor vehicle's fuel-reporting system has been problem-free for well over a year.
In Union Ink Co., Inc. v. AT&T Corp., 352 N.J. Super. 617 (App. Div. 2002)[,] the low threshold for determining the existence of an ascertainable loss was not further reduced or eliminated. " Of course, in order to recover damages, a victim of consumer fraud must prove an [']ascertainable loss,['] N.J.S.A. 56:8-19, but that requirement has been broadly defined as embracing more than a monetary loss. An ascertainable loss occurs when a consumer receives less than what was promised. " Id. at . This lack of fulfillment still must be objectively ascertained and is not defined by the subjective wants of plaintiffs. In this case, plaintiffs have offered little other than that they thought they were entitled to an everlastingly accurate fuel gauge. That defendant was briefly unable to satisfy plaintiffs' expectations is insufficient, even under New Jersey's consumer-friendly skies, to trigger liability. If plaintiffs cannot surmount the ascertainable loss threshold for purposes of the Consumer Fraud Act, they similarly cannot overcome the missing element of damages in their non-class action claims under the Uniform Commercial Code and Magnuson-Moss.
The stark reality of the dispute in this case reveals a rather mundane series of events: plaintiffs endured some early problems with the fuel systems in their cars; the problems were addressed and resolved; and plaintiffs encountered no ascertainable loss or damage. Accordingly, defendant's motion for summary judgment is granted.
On appeal, plaintiffs advanced two theories of loss, the first of which the Appellate Division rejected. Thiedemann, supra, 369 N.J. Super. at 411-12. The panel found unavailing plaintiffs' contention that the cost of repair to their vehicles could serve as a theory of their loss. Ibid. That cost had been incurred by defendant only and plaintiffs had not quantified any amounts they spent or would have to spend for possible future repairs. Ibid. However, plaintiffs' second argument succeeded in persuading the court that " proofs sufficiently established the likelihood of an ascertainable loss for summary judgment purposes." Id. at 413. The court stated that the mere possibility that the fuel gauge defect may be present in replacement parts used in the repair of plaintiffs' vehicles rendered it likely that the problem could recur. Ibid. The panel further took judicial notice of the likelihood that if the Flahertys were to advise a future buyer of their vehicle about the potential defect in the fuel sending unit's replacement parts, the Flahertys would receive less than if the defect was not present. Ibid. The court concluded that "common kn
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