Borgen v. a & M MOTORS, INC., 273 P.3d 575

Borgen purchased a used Travelaire motor home from A & M Motors in 2004; title showed 2003 model while VINs indicated 2002; MSO showed 2002; DMV later changed title to 2002; A&M relied on title for model year; Borgen discovered documents suggesting 2002 model in 2005 and sought relief under the UTPA.
At trial, there was contention over whether the model-year misrepresentation was a UTPA violation or merely a misrepresentation; a good-faith mistaken belief defense was debated; the jury found misrepresentation but did not find a UTPA violation.
The superior court granted directed verdicts for some parties and allowed a good-faith defense to the UTPA claim; the jury awarded Borgen $3,097.50 in damages and found no UTPA violation.
On appeal, Borgen challenges the court’s handling of UTPA claims, the good-faith defense, damages, and attorney’s fees; A&M challenges the sufficiency of the evidence for certain rulings.
The Alaska Supreme Court ultimately held that under the UTPA, a misrepresentation of a material fact (model year) can support liability even if made in good faith; affirmed restoring Borgen’s UTPA claim and treble damages, vacated the judgment against A & M Motors, and remanded for entry of a new judgment consistent with the opinion.
Attorney’s fees under the UTPA were remanded for proper awarding on remand.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether good-faith misrepresentation defense applies to UTPA claim	Borgen: misrepresentation under AS 45.50.471(b)(12) supports UTPA liability regardless of good faith	A&M: good faith can shield misrepresentation under UTPA	Good faith is not a defense to misrepresentation under AS 45.50.471(b)(12)
Whether the misrepresentation of model year constitutes an unfair or deceptive act	Borgen: misrepresentation by seller of model year violates UTPA	A&M: title may justify reliance; factual disputes exist	Misrepresentation of model year is encompassed by UTPA, regardless of good faith
Whether judgment NOV or new trial was warranted on UTPA claim	Borgen: elements shown; should have entered judgment NOV	A&M: jury findings inconsistent but reconcilable	Judgment NOV appropriate on UTPA claim; court to enter new judgment reflecting UTPA liability
Damages and entitlement to treble damages and attorney’s fees	Damages supported; treble and full fees owed under UTPA	Damages and fees contested; possible weight issues	Damages awarded to be trebled; remand for full attorney’s fees under UTPA

Myers v. Liberty Lincoln-Mercury, Inc., 89 N.C.App. 335, 365 S.E.2d 663 (N.C.App. 1988) (misrepresentation could violate UDAP absent bad faith)
Marshall v. Miller, 302 N.C.539, 276 S.E.2d 397 (N.C. 1981) (no explicit requirement of bad faith in private action)
Kenai Chrysler Ctr., Inc. v. Denison, 167 P.3d 1240 (Alaska 2007) (flexible, case-specific approach to unfairness under UDAP; distinguishes per se vs. general deception)
O'Neill Investigations, Inc., 609 P.2d 520 (Alaska 1980) (defective act deemed deceptive if has capacity to deceive; no intent required)
ASRC Energy Servs. Power & Communications, LLC v. Golden Valley Electric Ass'n, Inc., 267 P.3d 1151 (Alaska 2011) (FTC consumer-deception standard applied; focus on likelihood to deceive)
Duhl v. Nash Realty Inc., 102 Ill.App.3d 483, 429 N.E.2d 1267 (Illinois App. 1981) (innocent misrepresentations actionable under consumer act)
Gupta v. Asha Enterprises, LLC, 422 N.J.Super. 136, 27 A.3d 953 (N.J. Super. App. Div. 2011) (affirmative misrepresentation liable even without knowledge of falsity)
Panag v. Farmers Ins. Co. of Wash., 166 Wash.2d 27, 204 P.3d 885 (Wash. 2009) (unfairness in consumer protection requires no bad faith)
Bartner v. Carter, 405 A.2d 194 (Me. 1979) (deceptive acts may be actionable even when made in good faith)
State ex rel. Miller v. Pace, 677 N.W.2d 761 (Iowa 2004) (no requirement of knowledge of falsity for certain statutes)