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Jiries v. BP Oil

July 5, 1996

SAIDA JIRIES, PLAINTIFF,
v.
BP OIL A/K/A BP SERVICE STOP, MUSTAFA GUVEN, BP OIL CORPORATION AND JOHN DOE, DEFENDANTS.



Hayser, J.t.c., temporarily assigned

The opinion of the court was delivered by: Hayser

OPINION

HAYSER, J.T.C., temporarily assigned

Plaintiff brings this action seeking damages under the Consumer Fraud Act (Act), N.J.S.A. 56:8-1 through 20, and its relevant regulations. *fn1

The basic facts are not in dispute. Plaintiff sought to have certain automotive and auto body repairs made by the defendants to her personal automobile. The only claimed written authorization for this repair work is, apparently, to be found in two BP Oil credit card receipts, one containing an amount of $2,250 with a deposit stated as $500, and the other containing the reference "Body Repair," and setting forth a payment of $1,700. *fn2

Plaintiff claims some of the repair work was not done at all, and that she has had to have or will have to have the work done by others. She now brings this action, seeking the $2,200 she paid, together with statutory penalties and attorney's fees. *fn3

Plaintiff claims that the defendants either performed the repair work improperly, which will require corrective work, or did not perform agreed work, which will require the plaintiff to have another repair shop undertake the work. However, she presented no expert testimony at trial, offering no repair experts who would testify as to what repairs were made improperly or not made at all.

Plaintiff seeks compensatory and treble damages under the Act, together with attorney's fees and costs. The basis for this claim is the alleged violation of the Act's regulations concerning the prior preparation and submission of a written estimate and authorization for automotive and auto body repair work, together with all required disclosures.

Does the payment for repair work, contrary to the provisions of the Consumer Fraud Act, alone, constitute an "ascertainable loss" for purposes of a party maintaining an action under the Act? *fn4

The Act, specifically under N.J.S.A. 56:8-19, permits a private person to maintain an action for damages when the defendant commits an unlawful practice under the Act and the plaintiff suffers "any ascertainable loss of money." N.J.S.A. 56:8-19. Both requirements must be met. Cox v. Sears Roebuck & Co., 138 N.J. 2, 647 A.2d 454 (1994). A private plaintiff is not charged with the regulatory enforcement of the Act, and unlike the Attorney General, she must prove damages. Id. at 21; see also N.J.S.A. 56:8-19. Moreover, the standard of proof in private consumer fraud actions is higher than the standard for the Attorney General's enforcement proceedings. Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 541 A.2d 1063 (1988).

A violation of the Act's regulations can constitute an "unlawful practice" under the Act. Cox, 138 N.J. at 17. Furthermore, intent to violate the regulations is not a prerequisite for a finding as to whether an "unlawful practice" has occurred. Fenwick v. Kay Am Jeep, Inc., 136 N.J. Super. 114, 123-124, 344 A.2d 785 (App. Div. 1975), rev'd on Dissent 72 N.J. 372 (1977). Failure to provide a detailed written estimate and obtain a written authorization before automotive or auto body repairs are undertaken, is a deceptive and improper practice under the Act. N.J.A.C. 13:45A-26C.2 and 13:21-21.10 and .11. The superficial details provided on the credit card slips, whether completed as charge slips or not, do not meet the regulations' requirements. A completed invoice only provided after the work was completed also does not satisfy the requirements.

Clearly there was a violation of the relevant regulations. Plaintiff has met the first requirement of N.J.S.A. 56:8-19 by proving that the defendant committed an "unlawful practice."

However, the remaining issue is whether the plaintiff suffered an "ascertainable loss." Plaintiff argues that any payment made in violation of the Act constitutes such a loss. The court must conclude, nevertheless, that such a "loss" is not within the contemplation of N.J.S.A. 56:8-19.

Plaintiff never established at trial by any competent evidence that the repairs were faulty or not completed. Plaintiff's sole argument was that the repairs were undertaken contrary to the above regulations and that her "loss" was simply the payment ...


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