On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. ATL-L-3180-03.
The opinion of the court was delivered by: Fisher, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A.A. Rodríguez, C.S. Fisher and Yannotti.*fn1
Plaintiff Mary Perkins (plaintiff) purchased a 1998 Jeep designed and manufactured by defendant DaimlerChyrsler Corporation (defendant). At a time when the Jeep's odometer indicated it had already been driven 108,000 miles, plaintiff filed a complaint alleging that she was defrauded, in violation of the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, because defendant did not reveal that the vehicle was manufactured with a tubular steel exhaust manifold allegedly susceptible to cracking and premature failing, and unlikely to last for 250,000 miles, which, plaintiff claims without support, is the industry lifetime standard for such a part. Because this allegedly substandard part did not fail or require repair or replacement within the warranty period, we conclude that the complaint was properly dismissed.
Plaintiff filed her class action complaint on November 17, 2003, seeking damages on her own behalf as well as others similarly situated for violations of the CFA, and the Magnuson-Moss Warranty Act, 15 U.S.C.A. §§ 2301 to 2312. Defendant removed the action to the United States District Court for the District of New Jersey, but the federal court remanded the matter back to state court.
Defendant thereafter moved for a dismissal of the complaint. On the initial return date, the trial judge indicated he would dismiss the Magnuson-Moss claim as well as plaintiff's claim for declaratory relief,*fn2 but requested additional briefing about the viability of the CFA claim. Following further submissions and additional argument, the trial judge concluded that plaintiff failed to meet the CFA's requirement of proof of an "ascertainable loss," N.J.S.A. 56:8-19,*fn3 and that, in essence, even if she had, the CFA does not permit the maintenance of a private cause of action based upon an alleged defect in a product's component that not only had never manifested its alleged inadequacies but also had, in fact, outperformed the vehicle's warranty period. An order of dismissal was entered on January 7, 2005.
Plaintiff's appeal of the order of dismissal requires that we consider the concept of "ascertainable loss," the scope of her claim against defendant, and those factors which, due to their absence from plaintiff's complaint, required dismissal. Although we conclude that the trial judge prematurely determined that plaintiff had failed to demonstrate an ascertainable loss, we agree that plaintiff failed to state a legally-cognizable claim because the allegedly substandard part fully performed during the warranty period and beyond.
The Attorney General may bring a CFA action for purely injunctive relief, but a private plaintiff must be able to demonstrate that "he or she suffered an 'ascertainable loss . . . as a result of the unlawful conduct.'" Weinberg v. Sprint Corp., 173 N.J. 233, 237 (2002). See also Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 473 (1988); Daaleman v. Elizabethtown Gas Co., 77 N.J. 267, 271 (1978). As a result, the viability of a private CFA claim often turns on the question of whether a plaintiff is able to provide sufficient evidence of an ascertainable loss.
Recently, the Supreme Court referred to the CFA's requirement of an ascertainable loss as "enigmatic," observing "[t]here is little that illuminates the precise meaning that the Legislature intended in respect of the term 'ascertainable loss' in [N.J.S.A. 56:8-19]." Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234, 238, 248 (2005). See also Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 11 (2004) (noting that it could not "ascribe a plain meaning to the term ascertainable loss, nor find legislative history that sheds direct light on those words"). After reciting dictionary definitions of "ascertain" and "ascertainable," the Court concluded that "[t]o give effect to the legislative language describing the requisite loss for private standing under the CFA, and to be consistent with Weinberg, a private plaintiff must produce evidence from which a factfinder could find or infer that the plaintiff suffered an actual loss." Thiedemann, supra, 183 N.J. at 248.
Here, plaintiff's complaint alleges that plaintiff's then five-year old Jeep,*fn4 which had been driven for over 100,000 miles, contains a less durable exhaust manifold than defendant should have incorporated, a fact which defendant did not disclose when the vehicle was purchased. The complaint's allegations, even when expansively viewed, do not include a claim that plaintiff has incurred any out-of-pocket expenses or other actual loss as a result of this condition of the vehicle. Rather, a fair interpretation of plaintiff's claim of an ascertainable loss is that her Jeep has a reduced resale value even though it has an undamaged and still useful tubular steel exhaust manifold ...