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Thiedemann v. Mercedes-Benz USA.5/18/2005
ompasses circumstances where there is no ascertainable loss to an individual but there exists an industry practice that the State seeks to curtail. Mercedes-Benz adds that it would be a mistake to eviscerate the ascertainable loss requirement for a private cause of action because that could deter companies that have been proactive in advancing consumer protectionism through the provision of broad warranty programs. Indeed, both defendant and PLAC contend that the CFA implicitly encourages merchants, and specifically automobile sellers, to initiate pro-consumer warranty programs by rewarding those companies with the benefit of avoiding CFA exposure for claims brought by individuals who do not incur an out-of-pocket loss.
C.
Defendant and PLAC have the better of the arguments in this matter. The ascertainable loss requirement operates as an integral check upon the balance struck by the CFA between the consuming public and sellers of goods. The importance of maintaining that balance is obvious. Defects can, and do, arise with complex instrumentalities such as automobiles. The mere fact that an automobile defect arises does not establish, in and of itself, an actual and ascertainable loss to the vehicle purchaser. Indeed, the warranty provided as part of the contract of sale or lease is part of the benefit of the bargain between the parties. The defects that arise and are addressed by warranty, at no cost to the consumer, do not provide the predicate "loss" that the CFA expressly requires for a private claim under the CFA, bringing with it the potential for treble damages, attorney's fees, and court costs and fees.
Defendant aptly describes the effect of plaintiffs' contrary argument --- namely, that of deterring any salutary efforts exerted by automobile merchants to address voluntarily and responsibly defects that may arise post-sale. We do not wish to discourage self-improvement in the consumer goods industry. The remedial purposes of the CFA are not advanced by foregoing the statute's added starter -- that of requiring demonstration of a loss that is capable of being determined with certainty -- the ascertainable loss prerequisite to a private cause of action. Examination of the proofs advanced in respect of the purported class representatives reveals that neither present any such quantifiable or otherwise measurable loss.
In respect of the Flaherty plaintiffs, we do not doubt that they were inconvenienced by problems caused by the defective fuel gauge sensors in their vehicles. Nonetheless, the problems caused by the defective sensors did not result in any out-of-pocket monetary loss to plaintiffs. All repairs were performed by defendant under warranty, at no cost to the Flahertys, and the loaner vehicles were provided during periods when the Flahertys' car was being repaired.
The argument (and that is all that is proffered on this record) that there is a future hypothetical diminution in value in the E-320 due to a fuel gauge that at one time did not read properly a full tank of gasoline, is too speculative to satisfy the CFA requirement of a demonstration of a quantifiable or otherwise measurable loss as a condition of bringing a CFA suit. The Flahertys made no attempt to sell their vehicle. Nor did they present any expert evidence to support an inference of loss in value notwithstanding the lack of any attempt to sell the vehicle, i.e., that the resale market for the specific vehicle had been skewed by the "defect." The absence of any such evidence, presented with a sufficient degree of reliability to permit the trial court, acting as gatekeeper, to allow the disputed fact to proceed before a jury, was fatal to plaintiffs' claim.
We are n
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