Claims clarified under the state Consumer Protection Act
Published 08/23/07

On July 17, 2007, the Supreme Court issued a decision which clarified the scope of the New Hampshire Consumer Protection Act.

In the case before the court, the plaintiff sued the defendant following the purchase of a gelded horse. The plaintiff discovered that the horse had not been completely gelded and sought to recover approximately $4,000.00 in surgical expenses and other fees incurred to correct the incomplete gelding procedure. The defendant claimed that it had no knowledge that the gelding procedure had been improperly performed and produced a certificate from the veterinarian who gelded the horse which stated that the gelding procedure was complete.

At trial, the trial the plaintiff argued that the mere act of selling the horse which did not have the characteristics and qualities that the defendant represented was an automatic violation of the Consumer Protection Act. The fact that the defendant had a good faith basis to make those representations was immaterial.

Ironically, the plaintiff's own expert, a veterinarian from the Tufts Veterinary School, testified that no external examination would have revealed that the gelding procedure was incomplete. In fact, the veterinarian testified that the only way to confirm the gelding procedure was complete would have been for a blood test. A blood test would not have been performed on the horse when the horse came with a certificate from a veterinarian stating the gelding procedure had been completed.

The district court ruled in favor of the defendant finding that defendant's conduct was not unfair and deceptive because it had a good faith basis to rely upon the veterinarian's certificate. On appeal, the Supreme Court affirmed the district court decision. The Supreme Court held that merely because the defendant sold a horse that did not have the characteristics it represented did not make it automatically liable under the Consumer Protection Act.

The plaintiff would have to demonstrate that the defendant's conduct was unfair and deceptive. Unfair and deceptive, the Supreme Court held, required that the plaintiff show the defendant knew or intended to deceive the plaintiff as to the horse's true characteristics. Because the plaintiff had no evidence to show that the defendant engaged in unfair or deceptive conduct, the defendant had no liability under the Consumer Protection Act.

Andrew J. Piela is an associate attorney at Hamblett & Kerrigan, P.A. His legal practice includes civil litigation, family law, land use litigation and probate. You can reach Attorney Piela by e-mail at: apiela@hamker.com

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