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Kellett v. Hackensack Auto Body Company

A-6430-96T2 (N.J. Super. App. Div. 1999) (Unpublished)

CONSUMER FRAUD ACT; ESTIMATES—Where failure to give a written repair estimate, although required by law, did not give rise to an “ascertainable loss,” a consumer is not entitled to a statutory trebling of its damages nor to an award of attorney’s fees.

An owner brought her car to an auto body shop for repair. In violation of the New Jersey Administrative Code, the body shop did not offer a written estimate or get a signed waiver of such an estimate from its customer, nor did it get a written authorization from the customer for the repair before beginning work. None of the exceptions permitting an oral authorization for the work were satisfied. In addition the repairs were done negligently and the owner was therefore required to pay another body shop to correct the negligent work. After reviewing the evidence, the Court found that the body shop’s failure to give a written estimate violated consumer fraud regulations and concluded that the repairs performed constituted consumer fraud, thus entitling the owner to treble damages. The Appellate Division disagreed. In its view, technical violations of the Consumer Fraud Act or its regulations, although constituting an “unlawful practice” or a “deceptive practice,” do not by themselves create a sufficient basis to recover treble damages in the absence of an “ascertainable loss” due to the consumer fraud. The Court found nothing in the record to indicate that the failure to give a written estimate to the owner had anything to do with the negligent repair. Consequently, the failure to give a written estimate or to obtain a written waiver or to document an oral waiver was not the cause of any loss to the owner. The Appellate Division found ample evidence to support a finding that the body shop breached its oral contract of repair by performing a deficient repair job. However, the Court ruled that a breach of warranty or contract is not per se unfair or unconscionable and does not, alone, violate the Consumer Fraud Act. Without any ascertainable loss under the Consumer Fraud Act, treble damages could not be awarded and the body shop was liable for only the cost of remedying its errors.


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