By: Jordan Roberts
Earlier this year the Oregon Court of Appeals decided Simonsen v. Sandy River Auto, LLC 290 Or App 80 (2018), making it the most recent appellate case to discuss the meaning of “ascertainable loss” under Oregon’s Unlawful Trade Practices Act (the “UTPA”).
Under the UTPA: “a person that suffers an ascertainable loss of money or property, real or personal, as a result of another person’s willful use or employment of a method, act or practice declared unlawful under ORS 646.608, may bring an individual action in an appropriate court to recover actual damages or statutory damages of $200, whichever is greater. The court or the jury may award punitive damages and the court may provide any equitable relief the court considers necessary or proper.” ORS 646.638(1).
In Simonsen, the plaintiff purchased a used car from a dealership. Among other things, the dealer represented that various repairs had been made, that the car was “in good running order,” that it would “not need any major fixes soon” and that plaintiff was getting a “really good deal” and “a great price.”
Two days after purchase a third-party mechanic notified plaintiff that the timing belt on the vehicle needed to be replaced, that the valve cover gaskets leaked, that the exhaust system and undercarriage were severely rusted and that the muffler was beginning to “flake apart.” In addition, plaintiff learned that the car had been in a previous, undisclosed, accident.
Plaintiff brought a single UTPA action and sought rescission of the purchase pursuant to the UTPA or, in the alternative, actual or statutory damages. The rescission case was tried to the judge and the damage case to a jury.
The jury returned a verdict finding that the vehicle had one or more material defects, that the dealer knew or should have known of those defects and that defendant willfully failed to disclose those defects to the plaintiff. The jury also found that plaintiff’s economic damages, measured by the “reduction in the fair market value of the vehicle; and the out of pocket expenses incurred by plaintiff” were $0.
Defendant claimed that the $0 damage verdict meant it had prevailed and that the court was bound by the jury’s $0 damage verdict when deciding rescission. Plaintiff argued that he was still entitled to rescind the transaction because he suffered an “ascertainable loss” when he received a vehicle that was materially different than what had been represented and, in the alternative, was entitled to statutory damages. The trial court ruled for Plaintiff on his rescission claim and awarded plaintiff his attorney’s fees. Defendant appealed and the Court of Appeals affirmed the judgment.
After reviewing the history of the phrase “ascertainable loss” in Oregon case law, the Court of Appeals reaffirmed the principle that “ascertainable loss can be more than a quantified measurement of diminished market value.” In other words, “ascertainable loss” under the UTPA is not synonymous with “damages.” Any time that a consumer receives something that is different than that which they were promised or bargained for, that consumer may have a viable UTPA claim to recover the purchase price of the goods or services even if they have suffered no diminished value.