January 15, 2019
appeal from Superior Court of New Jersey, Law Division,
Camden County, Docket Nos. SC-002133-17, SC-002646-17,
SC-002661-17 and SC-000367-18.
Kristin J. Vizzone argued the cause for appellant James
Panter (Law Offices of Stephen E. Gertler, attorneys; Kristin
J. Vizzone, on the brief).
Jeffrey D. Noonan argued the cause for appellants Benjamin A.
Fratto, Albari M. El, and Deborah Moore (Pomeroy, Heller
& Ley, LLC, attorneys; Daniel J. Pomeroy, Karen E. Heller
and Jeffrey D. Noonan, on the brief).
B. Samuels argued the cause for respondents.
Judges Fisher, Suter and Firko.
these four suits, lodged in the Small Claims Section of the
Special Civil Part,  plaintiffs sought damages to redress the
alleged diminished value of motor vehicles they claim to own.
Defendants stipulated that the operation of their vehicles
caused physical damage to the vehicles in question, but they
argue that the claim that each vehicle was also devalued by
the stigma of having been in an accident is too speculative
to be cognizable.
suit was the subject of a bench trial before the same judge;
two of them - El and Fratto - were tried the
same day. And each suit resulted in verdicts
favorable to plaintiffs. Defendants' separate appeals -
now consolidated for disposition through a single opinion -
pose certain common questions. Although the cases involve
relatively small damage awards,  the parties urgently seek
our views on the issues raised because of what they claim is
a statewide plethora of similar diminished value claims.
chiefly direct our attention to the issue arising from the
fact that each vehicle is mentioned in one or more databases
that reveal to consumers the vehicle's accident history.
The parties' dispute whether that fact alone gives rise
to a tangible item of damage. They disagree about whether a
vehicle, which has been repaired or restored to its
pre-accident condition and function, can be said to have less
"value" than an identical but never damaged
vehicle. In other words these four cases ask the same
question: all other things being equal, would you pay the
same amount for a vehicle with an accident history as you
would for a vehicle without?
matter of law, we agree with plaintiffs that a motor vehicle
owner - like the owner of any other chattel - may recover for
an additional reduction in value when a vehicle has become
less desirable for resale because of the stigma of having
once been damaged. We recognize that consequence might be
overlooked in many cases; property owners often seek
compensation by presenting only evidence about the cost of
repair. See Parisi v. Friedman, 134 N.J.L. 273, 274
(E. & A. 1946). But the law has never limited
compensation to that element alone. To the contrary, our
courts have long recognized that a vehicle owner is entitled
to recover the difference between the vehicle's
value before the harm and its value after,
see Jones v. Lahn, 1 N.J. 358, 362 (1949); Hintz
v. Roberts, 98 N.J.L. 768, 770 (E. & A. 1923);
Premier XXI Claims Mgmt. v. Rigstad, 381 N.J.Super.
281, 283-84 (App. Div. 2005); Fanfarillo v. East End
Motor Co., 172 N.J.Super. 309, 313-14 (App. Div. 1980);
Nixon v. Lawhon, 32 N.J.Super. 351, 354 (App. Div.
1954), which could, in appropriate cases, involve any other
non-speculative impact on the vehicle's value.
sure, the measure of damages might be impacted by other
circumstances beyond the mere cost of repair, such as a
change in the marketplace, Parisi, 134 N.J.L. at
274-75, depreciation, Fanfarillo, 172 N.J.Super. at
313, and the loss of the vehicle's use, Restatement
(Second) of Torts, § 928 (Am. Law Inst. 1979).
Measuring damages might also be complicated by an owner's
election not to repair prior to bringing suit. Premier
XXI Claims Mgmt., 381 N.J.Super. at 284-85. But, when
implicated, all these factors are soluble through the
submission of adequate proof. Their implication does not bar
the measure of damages is a product of the difference between
the vehicle's pre-harm and post-harm value, the
fact that the defendant's negligence has given the
vehicle an accident history bears on its post-harm value.
With the advent of databases such as CarFax, the consuming
public now has the ability to learn whether a vehicle wears
the "scarlet letter" of an accident history.
Because the claims at hand rely on this newly-available
source of information doesn't mean the information should
be excluded when fixing damages in such a case. To the
contrary, we hold that the damage caused by such a
"scarlet letter" is just another factor that bears
on value and is recoverable if supported by sufficient proof.
See Restatement, § 928(a) (recognizing that
damages are recoverable "for any difference
between the original value and the value after repairs"
(emphasis added)). An award based on this "scarlet
letter" or "stigma" is not speculative but is
consistent with our past recognition that damages may include
such intangible concepts. Value is a concept based on what a
willing buyer would pay and a willing seller would accept
when neither was under a compulsion to act. City of