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Consumer Warranty Law: 14.9.4 Trial

A mechanic is a good first witness. A mechanic can set up the basic framework for the technical aspects that the jury needs to understand, particularly the impairment to use or safety. This witness can also testify about what advice a mechanic would offer a consumer concerning keeping a vehicle with the described defect.

Consumer Warranty Law: 14.9.5 Evidence and Proof Issues

The manufacturer’s technical service bulletins (TSBs) can demonstrate the existence of a defect. TSBs should be requested through discovery, but also obtain them through the Center for Auto Safety952 or from the National Highway Traffic Safety Administration (NHTSA) website,953 as a means of checking whether the defendant is producing all of them.

Consumer Warranty Law: 14.9.6 Collecting the Judgment

If a manufacturer fails to pay a judgment, a judgment attachment can be issued against the equipment in any of the manufacturer’s plants in the state. Another approach is to garnish a local dealership, which will probably owe the manufacturer for vehicles and parts, or garnish the entities that finance the vehicles that the dealer sells. Those entities may owe the dealer money for vehicle sales they are financing. In addition, the dealer’s floor plan financer, or the auction where the dealer buys vehicles, may be holding money of the dealer’s in reserve accounts.

Consumer Warranty Law: 14.7 Warranty Issues in Gray Market Vehicle Sales

The term “gray market” “refers to a fact pattern in which someone other than the designated exclusive United States importer buys genuine trademarked goods outside the U.S. and imports them for sale in the U.S. in competition with the exclusive U.S. importer.”850 Sometimes manufacturers or their distributors, responding to local market conditions, set lower prices when they sell cars to dealers in other countries, creating an incentive for U.S.

Consumer Warranty Law: 14.8.2.1 Lemon Law Coverage

Many motor home manufacturers give written warranties only on certain parts of the vehicle. They pass along the written warranties issued by the manufacturers of other parts. There may be no single entity willing to take responsibility for fixing the vehicle.

Consumer Warranty Law: 14.8.2.2 Application of UCC, Other Laws

Many courts hold that the implied warranty of merchantability arises not just against the immediate seller but also against the remote manufacturer.886 The implied warranty of merchantability should cover the vehicle as a whole, as that is the product that the final manufacturer sold to the consumer through the dealer.887 Motor homes are no different from other products, that a final manufacturer assembles from components manufactured by many other companies.

Consumer Warranty Law: 14.8.2.3 Litigation Issues

Ask early in discovery whether the entity named in the complaint as the final manufacturer actually meets that description. Many motor home manufacturers are subsidiaries of other companies. The parent company may be liable as the manufacturer’s alter ego, but if there is any doubt that the right corporation has been sued, find this fact out early and add the subsidiary to the suit.

Consumer Warranty Law: 14.8.5 Trial Issues

When trying a motor home case, prepare the jury for any terms used in the motor home industry that are not common knowledge. Prepare evidence that shows that the impairment is substantial. Many owners experience some problems with their motor homes. A jury that has some familiarity with motor home problems will want to know why the problems with the plaintiff’s home were so substantial as to justify the relief sought.

Consumer Warranty Law: 14.9.1.1 NHTSA Data

The federal National Highway Traffic Safety Administration (NHTSA) receives, investigates, and researches consumer complaints about motor vehicle defects, and can order manufacturer recalls.924 It is required by statute925 to make technical service bulletins (TSBs) available to the public in searchable form on its website.926 The same website allows sea

Consumer Warranty Law: 9.1 Introduction

Sellers may disclaim warranties pursuant to Uniform Commercial Code (UCC) section 2-316 or limit the buyer’s remedies for breach of warranty pursuant to section 2-719(1)(a).

Consumer Warranty Law: 9.3 Has the Consumer Agreed to the Remedy Limitation?

A limitation of remedies clause is only effective if the consumer has agreed to that provision. The UCC seeks to give effect to the parties’ actual agreement, whether or not it is reflected accurately in the written contract.18 Unless the parties have actually agreed that the limited remedy in the written contract is exclusive, that remedy is presumed to be merely optional for the buyer.

Consumer Warranty Law: 18.3.6.1 Breach Should Be Liberally Interpreted

The warranties of habitability and of good and workmanlike construction should be interpreted expansively. A broad warranty protects buyers from defects they cannot reasonably ascertain before the purchase, places the risk of loss on the party most able to prevent the loss or spread it across many transactions, and keeps defective homes out of the nation’s housing stock.

Consumer Warranty Law: 18.3.6.3 Breach of Warranty of Good and Workmanlike Construction

The standard for breach of the warranty of good and workmanlike construction is one of customary skill and care, in accordance with accepted standards.106 The warranty is breached when the work was not done in a “manner in which an ordinarily prudent person engaged in similar work would have performed under similar circumstances.”107 The test is not perfection, but reasonableness.108 Failing to comply with the construction contract may also breach

Consumer Warranty Law: 18.3.6.4 Common Defects That Breach the Warranties

Some of the most common defects that are likely to violate the warranties of habitability and workmanlike construction arise from the instability of the land on which the house is built, whether due to soil conditions or some other characteristic that either rendered the site unsuitable for any building, or unsuitable without adjustments or proper site preparation. These sorts of defects can cause cracks throughout an entire dwelling, allow the elements to invade the structure, and throw every wall and door off square.

Consumer Warranty Law: 18.3.7 Disclaimers of the Implied Warranties

A builder’s attempt to disclaim express or implied warranties will be viewed skeptically and with a presumption that it is ineffective. This presumption is consistent with the public policy of home buyer protection that led judges to create the implied warranties of habitability and good workmanship. If the policies behind the warranties compelled such judicial and legislative action, it makes little sense to allow a builder to erase that consumer protection with a single line of print.

Consumer Warranty Law: 18.3.8 Express Warranty, Merger Clause, or Transfer of Deed Do Not Nullify Implied Warranty

Builders commonly argue that an express warranty set out in the contract displaces any implied warranties, but courts roundly reject this contention.155 Express warranties supplement, not substitute for, the implied warranties.156 Merger and integration clauses similarly do not disclaim implied warranties, because implied warranties are not considered contract rights, but duties arising by operation of law.157