## Facts

- Robert Vanderbeek and two others were co-trustees of a trust and were former partners with Vernon Corporation.
- Vanderbeek learned that funds would be transferred into Vernon’s bank account.
- In the course of a partnership dispute, the co-trustees obtained a prejudgment writ of attachment against Vernon’s bank account.
- The attachment froze approximately $450,000 for about three weeks.
- Vernon claimed it planned to use those funds to purchase 200,000 shares of Osicom Technologies, Inc. stock.
- While the funds were frozen, Osicom’s share price rose.
- After the attachment was lifted, Vernon purchased 95,000 shares at the higher price and claimed it could not buy the remaining 105,000 shares.
- Vernon sought damages for wrongful attachment consisting of (1) the additional amount paid to acquire the 95,000 shares and (2) lost profits it claimed it would have earned on the 105,000 shares it did not purchase.
- The trial court denied recovery, reasoning that the stock’s increase was unforeseeable and the claimed damages were speculative.
- The Colorado Court of Appeals reversed in part, allowing recovery of the increased purchase cost for the shares actually bought but denying lost profits on shares not purchased.
- The Colorado Supreme Court granted certiorari to address the proper test for consequential damages in actions alleging tortious economic interference.

## Issues

1. What is the proper test for recovery of consequential damages in actions alleging tortious economic interference, including wrongful attachment: a contract-style “reasonable contemplation” test or ordinary tort principles?
2. Under the correct test, is Vernon entitled to recover the increased cost it paid to purchase 95,000 shares after the wrongful attachment was released?
3. Under the correct test, is Vernon entitled to recover claimed lost profits on the 105,000 shares it did not purchase?

## Decision

- The Colorado Supreme Court held that consequential damages in economic tort cases are governed by tort principles, not a contract-based “reasonable contemplation of the parties” limitation.
- The Court stated the proper test is whether the claimed damages are the natural and probable result of the injury caused by the tortious act; as in other tort cases, the damages must also be proximately caused by the tort and reasonably ascertainable.
- Applying that standard, the Court held the wrongful attachment was the proximate cause of Vernon’s inability to use the attached funds during the three-week period.
- The Court agreed that the increased cost Vernon paid to acquire the 95,000 shares was the natural and probable result of the wrongful attachment and was reasonably ascertainable; it was recoverable.
- The Court held that the claimed lost profits on the 105,000 unpurchased shares were not reasonably ascertainable and therefore were not recoverable.
- The Court affirmed the judgment of the court of appeals and remanded for recalculation of damages consistent with its opinion.

## Legal Principles

- Consequential damages for economic torts (including wrongful attachment) are available when the damages are the natural and probable result of the tortious act.
- A contract-style limitation based on what losses were within the parties’ reasonable contemplation does not control consequential damages in economic tort actions.
- Even when damages are a natural and probable result, recovery requires proof of proximate cause.
- Consequential damages must be reasonably ascertainable; amounts that depend on speculation, conjecture, or uncertain market assumptions are not recoverable.
- The measurable “use value” of wrongfully detained funds may be recovered when it can be calculated with reasonable certainty (for example, the increased cost paid for a purchase delayed by the wrongful detention).
- Claimed profits from transactions that did not occur (such as gains on stock never purchased) may be denied when the amount cannot be established with reasonable certainty.

## Conclusion

In *Vanderbeek v. Vernon Corporation*, the Colorado Supreme Court held that consequential damages for wrongful attachment and other economic torts are measured by ordinary tort rules: the losses must be the natural and probable result of the wrongful act, proximately caused by it, and reasonably ascertainable. Under that standard, Vernon could recover the calculable increase in price it paid for the 95,000 Osicom shares it actually purchased after the attachment ended, but it could not recover speculative lost profits on the 105,000 shares it never bought.


Vanderbeek v. Vernon Corporation, 50 P.3d 866 (2002)