Colorado’s second-highest court was unusually divided on Thursday over the state’s consumer protection law for vehicle owners, with three judges issuing three separate opinions about what the terms of the law require.

The Motor Vehicle Repair Act places obligations on repair facilities to provide certain disclosures and estimates to customers before beginning work. If a customer proves a violation, they are entitled to three times their damages in court.

The MVRA, however, contains a requirement: There has to be a “written demand for the customer’s damages” provided before filing a lawsuit.

With no precedent-setting decision for what a customer must specifically do to satisfy that requirement, a divided panel of the Court of Appeals concluded — just barely — that a dollar figure and a reference to damages are sufficient, regardless of how unrealistic the number is. In the process, one member of the majority asked for lawmakers to provide the definitive answer.

“I respectfully suggest that it is time for the General Assembly to amend the statute to create more clarity,” wrote Judge Jerry N. Jones.

A faulty notice?

In the underlying case out of Larimer County, the basic facts were undisputed.

A nearly new vehicle owned by Marrou Concrete, Inc. got into an accident in October 2021 and received minor damage to its rear bumper. The company took the car to Specialty Auto Body in Fort Collins for repairs, which insurance would pay for.

Specialty replaced the bumper, but the paint did not match the rest of the car exactly. Marrou Concrete’s owner asked Specialty to “blend” the colors to create consistency. The owner was subsequently surprised to learn Specialty partially disassembled the vehicle to complete the task. He told Specialty to halt the work and declined to pay the facility for any of the repairs, prompting Specialty to keep the vehicle in its possession.

Marrou Concrete then hired an attorney to notify Specialty of a potential MVRA claim. The lawyer first sent a letter advising Specialty that Marrou Concrete “would be willing to resolve this matter by selling the Audi in your client’s possession to your client for $70,000.”

Two months later, the attorney sent another letter to demand “payment of the damages” Marrou Concrete had suffered. Those amounts, the letter continued, “are included in the offer to resolve this matter that my clients made” previously.

Marrou Concrete filed suit. Specialty sought to resolve the case in its favor without a trial by disputing whether Marrou Concrete actually provided a “written demand for the customer’s damages” as the law required. District Court Judge Laurie K. Dean believed the two communications from the plaintiff’s attorney to the defendant satisfied that requirement.

“Defendants urge the Court to read into the demand provision requirements that the demand be itemized and use specific language. These are requirements that are not within the plain language of the statute,” she wrote.

A jury subsequently awarded Marrou Concrete $10,500 in damages for its Motor Vehicle Repair Act claim, which Dean tripled for a total of $31,500. Jurors also awarded $1 for breach of contract. None of the numbers discussed at trial came close to the initial $70,000 demand for the car.

On appeal, Specialty once again challenged whether Marrou Concrete’s messages amounted to a written demand for damages.

Judge Sullivan

Writing the majority opinion, Judge Grant T. Sullivan answered yes.

“By requesting $70,000 and characterizing the amount as ‘damages,’ counsel provided an estimate of the measure of Marrou Concrete’s loss or harm,” he wrote on Dec. 5.

“Armed with this information,” he continued, “Specialty had notice of the amount that they would have to pay Marrou Concrete to prevent its MVRA lawsuit from moving forward.”

Sullivan added that even if the original demand of $70,000 for the entire car was not representative of the damages Marrou Concrete suffered — as reflected in the jury’s award — there was nothing requiring a customer’s demand letter to track the actual financial loss.

Because Sullivan found Marrou Concrete complied with the law, he did not address what happens if a plaintiff neglects to make the required demand.

Judge Jones

Jones concurred “dubitante,” meaning he was dissatisfied with the decision but did not want to switch sides. Jones believed the demand notice envisioned by the law must, “at a minimum,” state the damages allegedly caused by the vehicle repair facility.

Consequently, he was unsure whether the initial demand for $70,000 in exchange for the car, combined with the subsequent reference to “payment of the damages,” gave the required information.

“How were defendants supposed to know the amount of the check they could write Marrou Concrete to cover its actual damages?” Jones wondered. “Again, a settlement demand and a demand for damages usually aren’t the same thing.”

Still, Jones opted to join Sullivan in upholding the jury’s award because the law itself did not require a more precise demand. He believed customers should be required to give a “good faith estimate” of damages and that a failure to do so should bar their legal claim — but the General Assembly should be the one to clarify whether that is how legislators intended the law to operate.

Judge Lipinsky

Judge Lino S. Lipinsky de Orlov agreed with Jones that a failure to comply with the procedure means a plaintiff’s Motor Vehicle Repair Act claim is barred. Further, Lipinsky believed the law clearly deemed Marrou Concrete’s series of communications inadequate.

“The statute requires the customer to inform the facility of the dollar amount that the customer reasonably believes it could recover if the customer prevailed,” he wrote. “I believe it is impossible to glean the amount of Marrou Concrete’s damages” from the information the lawyer provided Specialty.

Lipinsky likened the $70,000 demand to “an opening salvo in settlement negotiations.” Instead of being followed up with an estimate of damages, the lawyer’s vague second letter was “a pirate’s treasure map that fails to disclose where the chest of riches is buried.”

“While I appreciate the difficulty of calculating the damages attributable to allegedly improper automobile repairs while the vehicle is still in the shop,” Lipinsky added, “the statute does not create an exception for customers under these circumstances.”

The case is Marrou Concrete, Inc. v. KLR Enterprises Inc.