Most lemon laws require that the consumer give the manufacturer notice of the defect.238 This notice is distinct from any UCC-imposed notice requirements,239 and from notice requirements found in the manufacturer’s warranty. The consumer need not comply with these other requirements to assert a lemon law claim.240
When a dispute resolution mechanism’s decision is binding on the manufacturer, the consumer has the right to enforce the award through subsequent litigation.528 A Florida decision holds that a consumer who makes use of the manufacturer’s informal dispute resolution process but is not satisfied with the manufacturer’s compliance with that decision must then submit the dispute to the state-run dispute resolution board before seeking relief in court.529
Section 14.2.9, supra, examines when resort to an informal dispute resolution mechanism is a precondition to lemon law litigation. When that requirement is met or when it is not required, there still may be limits on judicial enforcement of the lemon law remedy.
Lemon law claims are pursuant to state law and must be filed in state court unless the action falls within the federal court’s diversity jurisdiction, satisfies some other basis for federal jurisdiction, or is supplemental to a claim over which the federal court has jurisdiction.
Whether a lemon law suit seeking a replacement vehicle (as opposed to a refund) must be filed in a court with equitable powers is undecided. The highest court in Maryland found it unnecessary to answer that question, but stated that it doubted that the legislature would have intended such a result.541 The court did rule that a lemon law suit seeking a refund need not be filed in a court with equity jurisdiction.
A right to jury trial for a lemon law claim depends on the state constitution and the language of the lemon law. Jurisdictions that characterize lemon law remedies as equitable may hold that there is no right to a jury trial,545 but those that hold them to be actions at law are likely to conclude that there is a right to jury trial.546 When seeking a jury trial argue that the lemon law action is merely a modification of warranty rights that existed at common law.
Whether a consumer has a damage claim under a lemon law depends on the wording of the statute.547 Statutory language allowing a civil action only “to enforce” a lemon law provision means the consumer can bring an action to enforce the right to a refund or a replacement vehicle. But can the consumer also seek damages?
Some lemon laws allow the consumer to recover through a civil action for any “damages” resulting from the lemon law violation, whether or not the suit seeks to enforce a replace or refund remedy. The Wisconsin lemon law allows a damages remedy when the dealer has not, cannot, or will not repair a nonconformity.556
The typical new car warranty will limit the consumer’s remedy, and disclaim any responsibility for incidental or consequential damages.
A number of states provide for multiple damages or a civil penalty for certain lemon law violations. Most require a showing of willfulness or unreasonableness. A court upheld the constitutionality of such a provision even though the penalty might not be proportionate to the actual harm the consumer suffers.568
Notice of the defect need only describe the “general problem,” not a particular defect.259 A Wisconsin court, in a questionable decision, found that the consumer’s notice must specify whether the consumer is seeking a refund or a replacement when the statute allowed the consumer to choose.260 The decision also found a notice offering the manufacturer another opportunity to repair the vehicle invalidates the notice.
Some lemon laws specify that giving the statutory notice to the manufacturer is a precondition to the assertion of certain lemon law rights.268 Others state that the presumption of a reasonable number of repair attempts does not apply unless the consumer has sent the required notice to the manufacturer.269 In Oregon, notice to the manufacturer and a repair opportunity are preconditions to any lemon law remedies, but need not precede the filing of suit.270
Lemon laws typically provide that, if goods are nonconforming, the seller must cure by repair at no cost to the buyer.276 This duty is separate from the refund or replacement obligation and is independently actionable.277 A manufacturer’s warranty that requires the buyer to pay a deductible for repairs which the lemon law covers violates the lemon law.278
Many lemon laws do not indicate whether the repair opportunity obligates the buyer to do anything more than give the manufacturer access to the car. If the manufacturer requires the consumer to deliver the vehicle to a particular location, it is unclear whether the buyer must bear the cost and inconvenience.
The consumer’s refund/replacement rights are specified in the lemon law. The typical statute triggers such rights after the manufacturer unsuccessfully makes three (or sometimes four) repair attempts for the same or substantially the same defect, or the vehicle is out of use for thirty or more calendar or, in some states, business days. Some lemon laws require that the purchaser afford the manufacturer a final repair attempt after giving notice that the car has been out of service in excess of the statutory period.290
The consumer’s delivery of the car to the dealer for repairs is a repair attempt, even if the dealer cannot verify that anything is wrong and thus does not attempt to make repairs.302 Seeking out the service manager to report a problem while at the dealership with the car for another reason is a repair attempt even if the service manager only provides advice and does not ask to inspect the car.303
Depending on the wording of the lemon law, out of service for thirty or more days means the car is unusable by the consumer for thirty or more days, not just in the repair shop for thirty days.309 A period of time when the consumer has possession of the vehicle but has been instructed to drive it only a limited amount to test the systems counts as being out of service.310 The time when the car is in the possession of a third party repair specialist hired by the seller is counted towards the out
The typical lemon law recites that “it shall be presumed that a reasonable number of attempts have been made” after four repair attempts or thirty days out of service.
The majority of lemon laws apply to nonconformities arising within one or, in some states, two years after vehicle purchase.
New car lemon laws provide that, after the manufacturer has had a reasonable number of attempts to cure, the manufacturer shall replace the defective vehicle or refund the purchase price. The consumer need not show damages to be entitled to the replacement or refund remedy.340 The court does not have discretion to substitute a lesser award.341
Many states specifically prohibit the laundering of AT device lemon devices. Most AT device warranty laws state that a returned device may not be resold or leased without full disclosure of the reasons for the return of the device.58 Such provisions are intended to prevent defective devices from being passed on to unsuspecting consumers.
Nearly all AT device warranty law statutes cover those who acquire, purchase, lease, or have the ability to enforce the warranty on the device.59 Some states also cover the agent for the purchaser or lessor.60 In Virginia, only persons with disabilities, as the term is defined under the Americans with Disabilities Act, or their legal representatives may bring claims.61