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Consumer Warranty Law: 14.3.3.3 Amount of Time Car Unusable

Courts cite the amount of time a vehicle is out of the owner’s possession for repairs as a factor in determining whether defects substantially impair value. Substantial impairment was found when a car was at the dealer’s repair shop four of the owner’s first six months of ownership.743 Seventeen repair visits in twenty-one months was held to indicate the vehicle was not fit for its intended use.744

Consumer Warranty Law: 14.4.1 Introduction

There are a number of situations in which a consumer may want to bring a damage claim concerning new car warranty issues. The consumer may want to keep the car, or the defect may not meet the requirements for UCC revocation of acceptance or a lemon law refund or replacement. A refund or replacement remedy may not make the consumer whole without an award of damages.

Consumer Warranty Law: 14.4.2 Lemon Law Does Not Preempt Other Damage Claims

Nearly all lemon law statutes specify that they do not limit the consumer’s other rights or remedies.754 In the absence of explicit statutory language, seeking relief under a lemon law does not limit the rights and remedies which are otherwise available to a consumer under any other law.755 That UCC rights and remedies remain available is particularly clear in light of UCC § 1-104, which provides that no part of the UCC shall be deemed to be impliedly repealed by subsequent legislation if such c

Consumer Warranty Law: 14.4.3 Magnuson-Moss and UCC Damage Claims

A Magnuson-Moss Warranty Act claim can be brought whenever the manufacturer or dealer breaches written or implied warranties.762 The opportunity to cure that is required in most circumstances will certainly have been met by the various repair attempts. The Magnuson-Moss claim provides for recovery of the consumer’s attorney fees and avoids most privity issues as to claims against a manufacturer.

Consumer Warranty Law: 14.9.1.2 The Center for Auto Safety

The Center for Automobile Safety is a resource for investigating defects.929 It collects all kinds of insider documents and technical service bulletins on certain particularly suspect car models and maintains a searchable database of complaints about vehicles. For a fee, it will obtain NHTSA documents on a particular model and perform other related research.

Consumer Warranty Law: 14.9.2 Pleadings

Unless a different claim serves as the basis for the court’s jurisdiction, the first count (or counterclaim or defense) should be either the one exhibiting the most outrageous conduct or the most complete factual statement. This lays out for the judge exactly what happened in a complete fashion and it allows re-allegation of subsequent claims in an orderly fashion. Whenever possible and practical, make a jury demand.

Consumer Warranty Law: 14.9.3.2.1 Selection of deponents

In the case of a defective vehicle, a key deponent is the manufacturer’s employee with authority to refund or replace the vehicle. Sometimes one employee has authority to offer a replacement and another has authority to offer a refund. Use interrogatories to identify them.

Depose the service manager at the dealership which undertook repairs to the vehicle. The consumer probably can identify this individual, at least by job title if not by name.

Consumer Warranty Law: 14.9.3.2.2 Deposing the manufacturer’s representative

The manufacturer’s district representative may be the most appropriate deponent in an automobile lemon case. Obtain the basic documents through a request for production of documents before this deposition. The notice of deposition should ask for the same documents, plus the deponent’s own file on the car. Even if copies of the relevant documents have already been produced, review the originals, as there is often helpful material on the reverse sides.

Consumer Warranty Law: 14.9.3.2.3 Deposing the dealer’s service manager

The dealer’s service manager may be willing to discuss the matter informally if the dealer is not a party to the suit. Off-the-record remarks have a way of evaporating at the time of trial, so make a record with an affidavit or a deposition. Alternatively, the service manager’s handwritten note listing important points or opinions may be helpful.

Consumer Warranty Law: 14.9.3.2.4 Deposing the service technicians

Repair technicians who worked on the car at the dealership are often useful witnesses. They are likely to believe that the reason the car could not be repaired, despite all their efforts, is that the car has a manufacturing defect. Establish with a repair technician that:

Consumer Warranty Law: 14.9.3.2.5 Deposing the defense expert

There are multiple goals in deposing the defense expert(s). There may be a Daubert challenge to the expert’s testimony;949 if sustained, the expert’s testimony is excluded from trial. Find out what things the defense expert will say that will hurt the consumer’s case, in order to prepare for cross-examination and rebuttal testimony.950 Some parts of the defense expert’s testimony may help the consumer’s case.

Consumer Warranty Law: 14.4.4 UDAP and Tort Claims

An unfair and deceptive acts and practices (UDAP) claim may be available not only for car defects, but also for a manufacturer’s noncompliance with its lemon law obligations and the dealer’s inadequate repair attempts.769 Most UDAP statutes provide for attorney fees and multiple, statutory, or punitive damages.770 UDAP claims also are available for oral and advertising misrepresentations.

Consumer Warranty Law: 14.4.5 Claims Under Special State Motor Vehicle Statutes

Several states have special motor vehicle laws that give consumers additional remedies when a dealer or manufacturer fails to perform its warranty obligations. The statute may be part of a motor vehicle franchise law or a dealer licensing law. These statutes vary greatly from state to state but may offer stronger remedies, fewer restrictions, or longer statutes of limitations than warranty or lemon law claims.

Consumer Warranty Law: 14.5.1 Introduction

The typical state lemon law applies to defects discovered in the first year or two after a new car’s purchase. New car warranties usually exceed the lemon law period, but nonetheless expire after a period of years. This section summarizes consumer remedies when a defect is not discovered until after these periods expire.

Consumer Warranty Law: 14.5.2 Service Contract Coverage

A significant number of new car sales are accompanied by the sale of a service contract, an extended warranty, or mechanical breakdown insurance. For an additional charge, the consumer obtains coverage for defects in addition to or beyond the term of the written warranty.

Consumer Warranty Law: 14.5.3 Secret Warranties

A secret warranty is a manufacturer strategy of paying for repairs after the automobile’s written warranty expires, but only to those consumers who are sufficiently aggressive about complaining. The secret warranty covers certain component or system malfunctions or defects which the manufacturer has found occurring in a widespread pattern. Because these policies are communicated only to the company’s regional offices and sometimes to the dealers, but never to buyers, they are called “secret warranties” or warranty adjustment policies.

Consumer Warranty Law: 14.5.6 Strict Liability and Negligence

Claims based on the manufacturer’s strict liability or negligence are examined in Chapter 12, supra. The claim is in tort and not based on a warranty, so expiration of the warranty is irrelevant. Nor is privity of contract an issue. Tort limitations periods typically begin running from when the consumer should have discovered the tort.