Hale v. Basin Motor Co.

MONTGOMERY, Justice (specially concurring).

I join in the majority opinion, except for the Court’s explanation of the reason for our holding that the Hales were properly awarded treble damages for Basin Motor’s violation of the Unfair Practices Act in 1985. In my view, the distinction between “substantive” and “remedial” legislation is singularly unhelpful in resolving an issue such as the one with which we are presented here. The problem is that, like many legal concepts, these terms denote ideas whose meaning at the core is fairly clear but which become vague and confusing at the periphery, often overlapping with the meaning of terms with which they are juxtaposed.

In this case, for example, it is fairly easy to regard the effect of the 1987 statutory amendment as creating rights and obligations which did not exist before the amendment was enacted. Under the law in effect at the time Basin Motor violated the Unfair Practices Act and at the time the Hales were damaged by having to have their car repainted, the Hales were entitled to reimbursement of those damages and Basin Motor’s obligation was to compensate them for the loss. When the legislature amended the statute, it created a new right in the Hales — a right to treble damages — and it enlarged Basin Motor’s obligation, if a violation of the Act was proved, to that of reimbursing the Hales threefold. 1

A better way of resolving the question than categorizing the amendment as “remedial” rather than “substantive” is to focus on the purpose of the legislation. (After all, that is the nature of the exercise in which we are engaged: statutory construction. The attempt is to determine and apply the intent of the legislature in amending the Act, and this can best be done, in my view, by trying to discern the purpose of the amendment and adopt that interpretation which best effectuates it.) The majority opinion says, in a somewhat different connection, that the statutory purpose is to create a private remedy to redress wrongs resulting from unfair and deceptive trade practices. This overall purpose can be further elaborated as being (1) to deter unfair or deceptive trades practices (i.e., violations of the Act) and (2) to provide an incentive for seeking redress of these often relatively minor (in amounts of damages) infractions. The first objective-deterrence — can be neither advanced nor frustrated by making the treble-damage remedy applicable to a violation occurring years before its enactment. The second objective, however, is subserved by permitting a claimant to seek treble damages in a suit initiated after the effective date of the legislation, even though the suit seeks relief on account of a cause of action arising before the statute was amended. I therefore agree that the trial court properly awarded treble damages to Mr. and Mrs. Hale.

On another, minor point: I do not necessarily agree that we might look favorably on a claim for “lost paid vacation time” as compensable damages under the Act. That would depend on whether the statute should be construed to permit recovery of consequential damages as well as recovery for the différence in the value of the property plus cost of repairs, if any. That issue is not properly presented on this appeal, and I express no opinion with respect to it.

. Surely the difference between substantive and remedial legislation cannot be that the former applies where a new right or obligation is created, whereas any expansion or contraction of that right — no matter how extensive — is only remedial.