Kentucky Consumer Protection Act Damages Cases

The Consumer Protection Act, Kentucky Revised Statutes (KRS) 367.220(1) provides, in relevant part, that: Any person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by another person of a method, act or practice declared unlawful by KRS 367.170, may bring an action . . . to recover actual damages. The court may, in its discretion, award actual damages and may provide such equitable relief as it deems necessary or proper. Nothing in this subsection shall be construed to limit a person's right to seek punitive damages where appropriate. Unlawful acts are defined in the Act as "unfair, false, misleading, or deceptive acts or practices in the conduct of any trade or commerce." (KRS 367.170) the term "unfair" means unconscionable. In Capitol Cadillac Olds, Inc. v. Roberts Ky., 813 S.W.2d 287 (1991), the Robertses filed an action against a dealership based on, inter alia, a violation of the Consumer Protection Act for failing to correct a mechanical problem with and repair damage to their car. the Robertses' claim was predicated on the view that the dealership failed to competently repair the damage, but attempted to persuade them that the work was done properly, and that at some point the dealership attempted to deceive them as to whether or not "factory" paint had been used. The parties' repair contract was for completed performance and the dealership, as the party charged with performance, was entitled to use its skill and judgment as to the method and materials. The Court concluded that reasonable people could differ as to whether the performance was satisfactory under the contract. It went on to say that: Not every failure to perform a contract is sufficient to trigger application of the Consumer Protection Act. The statute requires some evidence of "unfair, false, misleading or deceptive acts" and does not apply to simple incompetent performance of contractual duties unless some element of intentional or grossly negligent conduct is also present.