Simonsen v. Sandy River Auto, LLC

For purposes of the Unlawful Trade Practices Act, “ascertainable loss” is any loss capable of being discovered, observed or established, such that there is some inferred loss of the value of the bargain. Scott v. Western Intern. Surplus Sales, Inc., 267 Or 512, 516-17 (1973).

Defendant, a used car sales business, appealed the trial court’s entry of a judgment rescinding a contract for the sale of a vehicle to plaintiff-customer, stemming from plaintiff’s claim for violation of the Unlawful Trade Practices Act (UTPA) for defendant’s failure to disclose material defects about the vehicle.  Defendant assigned error to the trial court’s grant of rescission following a verdict without damages.  On appeal, defendant argued plaintiff was not entitled to rescission because the absence of a finding of actual damages indicated plaintiff did not suffer any ascertainable loss, and was therefore not entitled to rescission.  ORS 646.638(1) permits a person who suffers an “ascertainable loss” of money or property as a result of another person’s willful unlawful trade practice to recover actual damages, punitive damages, or equitable relief a court considers necessary or proper. Under Scott v. Western Intern. Surplus Sales, Inc., 267 Or 512, 516-17 (1973), “ascertainable loss” under the UTPA is any loss “capable of being discovered, observed or established,” such that there is some inferred loss of the value of the bargain.  Because the trial court found defendant failed to disclose material defects about the vehicle to plaintiff, the Court of Appeals concluded the difference between the bargain promised and the trouble actually delivered to plaintiff constituted ascertainable loss, justifying rescission as equitable relief under ORS 646.638(1). Thus, the Court held the trial court did not err in granting rescission to plaintiff as an equitable remedy under ORS 646.638(1) in the absence of a finding of actual damages.  Affirmed.