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Thiedemann v. Mercedes-Benz USA.5/18/2005
rtainable" loss is that it is quantifiable or measurable. Moreover, it need not yet have been experienced as an out-of-pocket loss to the plaintiff. See, e.g., Cox, supra, 138 N.J. at 22-23 (noting that to demonstrate "loss" victim need not have actually spent money to perform repairs to correct defendant's errors in performing kitchen renovation). An "estimate of damages, calculated within a reasonable degree of certainty" will suffice to demonstrate an ascertainable loss. Id. at 22. We can envision the possibility that an expert may be able to speak to a loss in value of real or personal property due to market conditions, with sufficient precision to withstand a motion for summary judgment. However, by the time of a summary judgment motion, it is the plaintiff's obligation to be able to make such a demonstration or risk dismissal of the cause. The plaintiffs in Weinberg could not meet the required threshold necessary to vault a motion for summary judgment --- namely, they could not demonstrate a cognizable and calculable claim of loss due to the alleged CFA violation. Supra, 173 N.J. at 254. The question here is whether the instant plaintiffs have presented a claim that should be permitted to proceed before the finder of fact.
B.
According to plaintiffs, there is a distinction between a loss that is ascertainable and one already ascertained. Plaintiffs claim that Mercedes-Benz owners who drive their vehicles without knowledge of the defect in the fuel sending unit have not ascertained any "loss," but with class action assistance and further discovery, those owners could discern their "loss," and thus the loss must be considered to be "ascertainable." To the extent that plaintiffs further contend that such class members should not be deprived of CFA's injunctive remedies and of a fee award even if their loss is unquantifiable, plaintiffs' argument squarely conflicts with our past holdings that recognized a distinction between private CFA causes of action and those that may be brought by the Attorney General. See Weinberg, supra, 173 N.J. at 250; Cox, supra, 138 N.J. at 21; Meshinsky, supra, 110 N.J. at 473.
Plaintiffs alternatively posit that they can present a loss that is quantifiable. Their claimed loss is measurable, they say, by the cost of designing and installing into each class member's vehicle a fuel sending unit free of defects, or by the cost of a single repair, multiplied by the expected number of repairs over the life of an average vehicle, or by assessing the reduced value of plaintiffs' vehicles due to the fuel sending unit defect. As to the last of these methods, plaintiffs assert that no class member should have to actually sell his or her vehicle -- the theoretical asserted loss in value should suffice. The Appellate Division decision accepted that latter argument, notwithstanding that it was unsupported by any proffer of lay or expert evidence. The panel found that a "likely," albeit hypothetical, future loss in value could arise due to the possibility that the defect would re-emerge in replacement parts used in warranty repairs on the class representatives' vehicles and that that hypothetical future loss met the required demonstration of "ascertainable loss." Thiedemann, supra, 369 N.J. Super. at 413-14.
Defendant Mercedes-Benz and amicus curiae, the Product Liability Advisory Council (PLAC), argue that the Appellate Division decision conflicts with established law. They refer to the case law enforcing the legislative distinction between those CFA actions that may be brought by private individuals who actually experience a loss due to a consumer fraud violation, and the broader category of actions that may be brought by the Attorney General, which enc
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