(concurring):
19 I concur fully in the court's opinion. I write separately only to highlight the incorrect use of legal terminology in the statute. I do so in the hope the controlling language of the statute will be corrected. That failing, I hope to make a record of the incorrect usage so that the peculiar meaning of the terms "special damages" and "general damages" as used in the restitution statute will not muddy the meaning of those terms in other contexts.
{20 Our restitution statute says that the "[plecuniary damages" that can be awarded are "all special damages, but not general damages." Utah Code Ann. § 77-882a-102(6) (Supp.2002). The difference between general damages and special damages is suceinetly explained by Professor Dan B. Dobbs in these terms:
Special damages include items of loss that are more or less peculiar to the particular plaintiff and would not be expected to oceur regularly to other plaintiffs in similar cireumstances. General damages, on the other hand, are damages that courts believe "generally" flow from the kind of substantive wrong done by the defendant.
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. The distinction between general damages on the one hand and special damages on the other hand is quite important *217for practical reasons. Courts are quite willing to award general damages but quite reluctant to award special damages.
Dan B. Dobbs, Handbook on the Law of Remedies § 8.2, at 188-89 (West 1973). Dobbs goes on to explain that two particular limitations combine to restrict or preclude the availability of special damages. "The first is that special damages must be proved to a reasonable certainty.... The second ... is that no special damages are recoverable if they are deemed remote." Id. § 8.2, at 139. In tort cases, remoteness is addressed as an aspect of proximate cause. See id. If special damages are disallowed in a tort case, the court will
say that the defendant's tort was not a proximate cause of the plaintiff's damages. In a contract case a very similar idea will be expressed by saying that the damages claimed by the plaintiff as a result of the defendant's breach were not within the contemplation of the parties when the contract was made, and therefore are not recoverable.
Id.
121 This concept is, quite literally, "horn-book law," and Utah unquestionably adheres to these settled precepts-at least outside the context of eriminal restitution. See Castillo v. Atlanta Cas. Co., 989 P.2d 1204, 1209 (Utah Ct.App.) (stating that plaintiffs in contract actions can recover "general damages, which flow naturally from the breach, and consequential damages,1 which, while not an invariable result of breach, were reasonably foreseeable by the parties at the time the contract was entered into"), cert. denied, 945 P.2d 1118 (Utah 1997); Cohn v. J.C. Penney Co., 587 P.2d 306, 307 (Utah 1975) ("General damages are those which naturally and necessarily result from the harm done. They are damages which everybody knows are likely to result from the harm described and so are said to be implied in law. Special damages are those which occur as a natural consequence of the harm done but are not so certain to flow therefrom as to be implied in law. One claiming them must plead them so as to let his adversary know what will be involved.")2
122 Lawyers will recall the application of these principles in cases considered at length in the first year of law school. Thus, Mr. Baxendale was not liable to Mr. Hadley for the profits Hadley lost when his mill was shut down longer than necessary because Baxendale was remiss in delivering a part. See Hadley v. Baxendale, 156 Eng. Rep. 145, 151 (Exch.1854). It was held that
such loss would neither have flowed naturally from the breach of this contract in the great multitude of such cases occurring under ordinary cireumstances, nor were the special cireumstances, which, perhaps, would have made it a reasonable and natural consequence of such breach of contract, communicated to or known by the defendants. >
Id. Similarly, a tortfeasor may be liable to the owner of a house if a fire he starts while negligently working therein or nearby destroys the house, but he may not be liable to the owner of a distant house to which the fire spreads. See generally Ryan v. New York Cen. R.R. Co., 85 N.Y. 210, 216-17 (1866). But see Milwaukee & Saint Paul Ry. Co. v. *218Kellogg, 94 U.S. 469, 474-75, 24 L.Ed. 256 (1876).
123 What is the practical distinction between special and general damages? Dobbs gives this example: If through negligence, plaintiff's land is flooded, the measure of general damages will typically be the amount by which the value of the land was diminish ed. See Dobbs, Handbook on the Law of Remedies § 3.2, at 189. Plaintiff might also have a claim for special damages. "For example, the flooding might have led to mosquitoes that caused the plaintiff to contract disease. If this could be proven, the landowner might reasonably assert a claim for both general damages and special damages." Id.
{24 In the case of conversion, the tort most closely paralleling the crime in this case, the measure of general damages is "the value of the chattel at the time and place of conversion, usually with interest from that time." Id. § 5.14, at 403 (footnote omitted). Accord Jenkins v. Equipment Ctr., Inc., 869 P.2d 1000, 1004 (Utah Ct.App.1994) (noting that "the measure of damages in a conversion action is the value of the property at the time of the conversion, plus interest"). Potential special damages for conversion include "damages for loss of use of the converted article," Dobbs, Handbook on the Law of Remedies § 5.14, at 408, and "expenses of pursuing the converted property." Id. § 5.14, at 410. See Lilengquist v. Utah State Nat'l Bank, 99 Utah 168, 100 P.2d 185, 190 (1940) (noting that "special damages over and above the value of the converted property may properly be awarded where the circumstances are such as to warrant it"). Accordingly, in Henderson v. For-Shor Co., 757 P2d 465 (Utah Ct.App.1988), we noted that
"(special damages may be recovered in an action for conversion for any injury proximately resulting from the conversion. Damages flowing from the conversion which are not ordinary, usual, or commonly to be expected, are recoverable if, under the circumstances, it can be fairly said that both parties have these consequences in contemplation at the time of the wrong complained of, as the probable result thereof, and if these unusual consequences are neither uncertain, unnatural, nor remote as to cause, nor speculative and conjectural in effect. Thus, compensation for time lost as a proximate result of the conversion, or for time and money spent in pursuit of the property converted, may be recovered. The owner may also recover special damages resulting from the withholding of the property."
Id. at 469-70 (quoting 18 Am.Jur.2d Conversion § 117 (1985)).
1 25 What does all this mean in cases like the instant one? Under a plain reading of the restitution statute, which is the approach we are obligated to employ, see State v. Westerman, 945 P.2d 695, 696 (Utah Ct.App.1997), the result is a bizarre one: The victims of a criminal conversion of their automobile may not recover general damages, the value of their vehicle at the time and place of conversion, but they are entitled to their special damages. See Utah Code Ann. § 77-88a-102(6) (Supp.2002) (" 'Pecuniary damages' means all special damages, but not general damages, which a person could recover against the defendant in a civil action[.]"). Thus, while they could not recover the value of their lost vehicle, they could recover the cost of renting substitute transportation or cab and bus fare, the expenses of hiring a private investigator to find the car, and the profits lost if the car was used on a newspaper delivery route or by a traveling salesman. Such an approach inverts the usual hierarchy of the law whereby the more certain general damages are readily available while the less automatic, more speculative special damages are tougher to recover. See Dobbs, Handbook on the Law of Remedies § 3.2, at 139 ("Courts are quite willing to award general damages but quite reluctant to award special damages."); Utah R. Civ. P. 9 (The same pleading rule requiring, in subsection (b), that fraud be pleaded "with particularity" also requires, in subsection (g), that "[wlhen items of special damage are claimed, they shall be specifically stated.").
126 Uncharacteristically, Utah appellate courts have ignored the plain language of the statute and done what the Legislature probably really intended. Thus, we pay lip service to the fact that the statute equates pecuniary *219damages with special damages and excludes any recovery for general damages but then go on to affirm awards of what are clearly general damages. See eg., State v. McBride, 940 P.2d 539, 545 (Utah Ct.App.) (holding "the trial court correctly ordered appellant to pay restitution for the full value of the vehicle"), cert. denied, 958 P.2d 449 (Utah 1997); State v. Twitchell, 882 P.2d 866, 870 (Utah Ct.App.1992) (affirming restitution award on conversion theory "[blecause the measure of damages in a conversion case is the full value of the converted property"). The main opinion in this case finesses the problem, while affirming a restitution award that unmistakenly includes general damages, by observing in footnote 2 that "Corbitt does not assert the Lopezres' losses are general damages of the type excluded from the restitution statute[ ]."
€27 The mistaken exclusion of all general damages from the definition of pecuniary damages as used in the restitution statute is no doubt attributable to the Legislature's degire to exclude pain and suffering, diminished reputation, and other less tangible elements of damage from the seope of restitution orders. As explained by Dobbs,
there is one special and entirely different use of the term "general damages[,"] that should be distinguished. In the case of certain dignitary invasions, such as libels, invasions of privacy, assaults, alienation of affections, and the like, the injury done is often not an economic one at all but substantial damages are allowed nevertheless. These are called general damages, to distinguish them from proof of actual economic harm and from punitive damages. In the dignitary cases, then, the term "general damages" does not refer to a measure at all; it merely refers to damages awarded for the affront to the plaintiff's dignity and the emotional harm done. In all other cases, the term "general damages" is a measure or yardstick, and it can be applied to the facts of the case to determine the actual amount of money that should be awarded.
Dobbs, Handbook on the Law of Remedies § 8.2, at 139 (emphasis in original; footnote omitted).
128 The practical approach employed by Utah appellate courts has been to limit, albeit sub silentio, the general damages exclusion in the restitution statute to what Dobbs characterizes as "dignitary invasions," while at the same time effectively ignoring the statute's definition of pecuniary damages as dovetailing with special damages, and instead just focusing on demonstrable pecuniary loss, or what Dobbs refers to as "actual economic harm." Id. I think this approach advances the Legislature's intent in the broad sense, but it is very much at odds with our oft-repeated objective to interpret statutes in accordance with the plain meaning of the words used. As such, I find the approach to be somewhat uncomfortable.3 Perhaps it will be less so if we are perfectly candid about what we are doing pending the Legislature's opportunity to adjust the statute.
. "Special damages" and "consequential damages" are synonymous. See Marquette Cement Mfg. Co. v. Louisville & Nashville R.R. Co., 281 F.Supp. 944, 948, 950 (E.D.Tenn.1967), aff'd, 406 F.2d 731 (6th Cir.1969).
. The Court in Cohn offered this tort example:
Plaintiff sues defendant for blowing up his dam in the river and claims damages in the amount of $5,000. His proof shows the cost of repairs to the dam to be $1,000. He offers evidence to the effect that he had a water mill which had to be shut down for two months during the rebuilding of the dam and that he lost profits in the amount of $4,000 as a result thereof. The rebuilding of the dam is an item of general damages, but the loss of profits due to inoperation of the mill is an item of special damage because it is peculiar to his case. Another man might have his dam blown up and might not even own a mill, or it might not be operative. Still another man might have special damages because he could not irrigate his farm as a result of the destruction of the dam which he owned and the flowering of the water below the bottom of his lateral ditch. Each dam owner would need to set forth his particular special damages because such special damages do not of necessity follow as a result of the tort. ' f
Cohn v. J.C. Penney Co., 537 P.2d 306, 307 (Utah 1975).
. "The writer is reminded of Lincoln's observation that calling a horse's tail a leg does not make it a leg." Boards of Educ. v. Salt Lake County Comm'n, 749 P.2d 1264, 1271 n. 2 (Utah 1988) (Howe, J., concurring & dissenting).