Credit Damages Are Actual Damages
If you believe that damages for loss of credit are speculative and therefore not recoverable as an element of special damages, think again. Consider the following hypothetical as an archetype of cases which cry out for compensation for damaged credit.
Sandy lost a job of 25 years. All signs point to a wrongful termination and age discrimination. Over the years, because Sandy had a steady income and has maintained excellent credit, always able to make timely payments on a mortgage, the recently purchased new automobile, and credit cards. Having lost employment, Sandy is worried about making those payments and maintaining good credit.
What can you do for Sandy and those in a similar situation? Your client is frightened about the severe economic hardship he or she may face. You want to do everything within your ability to make the client whole. And you are stymied. You know that your client will face future difficulties with credit. The client's credit rating is certain to be damaged as it becomes increasingly difficult to meet credit obligations. Your experience tells you and you have been taught that you have no ability to seek damages for the injury to your client’s credit. You believe that it is not possible to make a special damages claim for harm to credit. You have been left to hope that a jury will consider the pain and suffering associated with credit problems in assessing general damages. You have found it necessary, when negotiating a settlement, to attempt to convince defense counsel that a jury will do just that in support of your settlement demand.
You would be in a much stronger position if you plead credit damages as an element of special damages. If you do, an expected defense objection will be that a claim for credit damages is speculative. Speculative damages are defined as damages that are highly improbable or contingent on the occurrence of a future event. They are speculative when the existence of the damages is uncertain, not the amount, which is subject to proof and the determination of the trier of fact.
