On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-4750-00.
The opinion of the court was delivered by: Axelrad, J.T.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Amended Opinion: June 8, 2005
Before Judges Newman, Axelrad, and Holston, Jr.
Plaintiff Amiel Dabush, a vehicle lessee, appeals from summary judgment dismissing his class action against defendant Mercedes-Benz USA, Inc. (MBUSA), seeking damages under the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20. Plaintiff claimed that MBUSA misrepresented, in a marketing brochure, the scope of coverage of the satellite-based navigation system in its 2000 S-class automobiles. Plaintiff was unable to obtain directions to an exact address from the navigation system in his vehicle and arrived forty minutes late to a business meeting; he did not lose any money or business due to his late arrival. The trial court found he did not sustain an ascertainable loss under the CFA.
On appeal, plaintiff contends the court applied the wrong legal standard for ascertainable loss under N.J.S.A. 56:8-19 by requiring him to show: (1) the existence of a navigation system on the market with the coverage as represented by MBUSA and (2) reliance on MBUSA's misrepresentations regarding the scope of coverage of the navigation system. Plaintiff also contends the court erred in limiting certification of the class to Connecticut and New Jersey residents. We affirm the grant of summary judgment based on plaintiff's failure to demonstrate an ascertainable loss under the CFA. Accordingly, the issue of class certification is moot.
Plaintiff, a Connecticut resident, was the co-owner of a company that developed software and hardware for the telecommunications industry. His expertise was in the software component of the company.
Plaintiff obtained a marketing brochure for a 2000 Mercedes S-Class vehicle at a local dealer. The brochure contained the statement -- "The S-Class has a standard navigation system to help you find your way . . ." with a picture depicting a highway sign pointing towards "Middle of Nowhere," "Nowhereville," and the "Boonies." The brochure further declared: "Using 24 satellites that transmit positioning signals to earth, the S-Class can tell what street it's on and what time zone it's in. Ship and aircraft navigators use the same system." As to the navigation system, the brochure specifically stated:
DID YOU EVER WONDER IF YOU'RE GOING THE RIGHT WAY?
THAT FEELING WILL SOON BE A FAINT MEMORY.
IF THERE'S A ROAD THAT GOES THERE, THE S-CLASS CAN SHOW YOU THE WAY.
Built into every 2000 S-Class is a satellite-based navigation system that helps get you to your destination by the quickest route, or the shortest distance, or by using more or fewer freeways. The navigation computer reads your latest copy of a CD-ROM map to start the process (a CD-ROM map of your region comes with the car). Enter your destination and your car pinpoints its location, using the GPS [Global Positioning System] satellite. As you travel, the car's wheel speed sensors and COMAND's [Cockpit Management and Data System's] gyroscopic sensor continually compare notes with the satellites to keep track of your progress. CD-ROMs for additional areas, as well as periodic updates, are available at additional cost. [Emphasis added].
The S-Class was MBUSA's flagship vehicle, retailing for approximately $70,000. The 2000 S-Class was first made available for lease or purchase in March 1999. Every 2000 S-Class contained as a standard feature the COMAND System, which included the control unit for the telephone, the radio/audio system, the cassette tape player, and the navigation system. As the brochure declared, the navigation system used a combination of satellite technology and map data contained on a CD-ROM to help the driver find a location. Satellite technology provided the location of the vehicle through GPS signals. Using these signals, the computer evaluated the map data in relation to the position of the vehicle and calculated a route to a determined destination. The navigation system split the United States into nine regions, each with its own CD-ROM. Each customer was provided with a CD-ROM for his or her region; CD-ROMs for other regions were available for separate purchase. These satellite-based systems were an option on MBUSA's 2000 E-Class models.
In March l999, plaintiff leased a 2000 S-Class from a Mercedes-Benz dealer on Long Island. Plaintiff never test drove the car, tried the navigation system, or questioned the dealer about the navigation system before he signed his lease. Plaintiff deposed that he wanted to own the S-Class Mercedes because of the way it looked, its technology, and its "level of luxury." He also claimed the navigation system was "a major part of and the reason why [he] bought the car." A CD-ROM map for the New England region was included with his S-Class, containing maps for the states of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, ...