WPI 310.06 Injury in Consumer Protection Act Claim

This is an optional instruction to be used when the jury would benefit from a supplemental instruction on the definition of “injury to business or property.” Add the bracketed language of the second and third paragraphs if there is evidence to support its use.

Under Washington's Consumer Protection Act, injury is separate from damages, therefore quantifiable monetary loss is not required. Frias v. Asset Foreclosure Servs., Inc., 181 Wn.2d 412, 431, 334 P.3d 529 (2014).

In Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 792, 719 P.2d 531 (1986), the court discussed the nature of injury to “business or property.” Non-quantifiable injuries such as loss of good will are sufficient to establish the required injury; even minimal damages are sufficient. Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1135–36 (9th Cir. 2016) (failure to disclose certain job opportunities created sufficient grounds for CPA claim); Mason v. Mortg. Am., Inc., 114 Wn.2d 842, 792 P.2d 142 (1990) (injury as result of loss of use of property); Handlin v. On-Site Manager, Inc., 187 Wn.App 841, 849–51, 351 P.3d 226 (2015) (withholding credit report used to deny rental housing is injury); Sorrel v. Eagle Healthcare, 110 Wn.App. 290, 298, 38 P.3d 1024 (2002) (injury by delay in refund of money).

“Injury” includes the costs of investigation, and the time needed to conduct that investigation, in response to a defendant's misleading communication about amounts owed to the defendant. Panag v. Farmers Ins. Co. of Wash., 166 Wn.2d 27, 40, 57–65, 204 P.3d 885 (2009); see also Stephens v. Omni Ins. Co., 138 Wn.App. 151, 159 P.3d 10 (2007), affirmed on different issues, Panag, 166 Wn.2d 27 (loss of time and expense of investigating validity of claim qualify as injury to business or property).

“Injury” also includes an insured's settlement agreement, even if it includes a covenant not to execute, as the agreement can impair the insured's credit rating or lead to damage to reputation and loss of business opportunities. Moratti v. Farmers Ins. Co., 162 Wn.App. 495, 254 P.3d 939 (2011); see also Williams v. Lifestyle Lift Holdings, Inc., 175 Wn.App 62, 73–74, 302 P.3d 523 (2013) (cost of surgery even if performed competently is injury, if surgery undertaken because of deceptive marketing).

On the other hand, expenses of litigating a personal injury claim do not constitute “injury.” Panag, 166 Wn.2d at 40–41. For further discussion of injuries to business or property, see DeWolf & Allen, 16 Washington Practice, Tort Law & Practice § 8.9 (5th ed.).

While the injury to business or property involved in a claim under the Washington Consumer Protection Act (CPA) need not be great, some injury must be established. Cousineau v. Microsoft Corp., 992 F.Supp.2d 1116, 1128 (W.D. Wash. 2012) (smart phone user's allegation that phone manufacturer's unauthorized transmission of data to its server caused a diminution in users' data plans was too nebulous to demonstrate injury absent an allegation the user paid a wireless carrier for a finite allowance rather than an unlimited usage plan).

Pain and suffering are “personal injuries” as opposed to injuries to “business or property.” Personal injuries are not compensable damages under the Consumer Protection Act. Ambach v. French, 167 Wn.2d 167, 216 P.3d 405 (2009); White River Estates v. Hiltbrunner, 134 Wn.2d 761, 765 n.1, 953 P.2d 796 (1998); Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wn.2d 299, 318, 858 P.2d 1054 (1993).

The court has discretion to treble the plaintiff's damages: “[T]he court may, in its discretion, increase the award of damages up to an amount not to exceed three times the actual damages sustained.” RCW 19.86.090 (capping such increased damages at $25,000 for violations of RCW 19.86.020).