On behalf of its client, Azubueze Jiagbogu, Norman Taylor & Associates
won a decisive victory against Mercedes Benz USA on issues relating to
offsets claimed by manufacturers for years in computing how much a consumer
was entitled to in a lemon law case. In addition, the court of appeal
put to rest and old defense practice of creating confusion for juries
in determining whether a consumer's vehicle qualified for a refund
or replacement under the law.
The Second Appellate District Division Four issued a unanimous decision
authored by Justice Epstein on three critical areas:
1. Can continued use of a motor vehicle constitute a waiver of the consumer's
rights under the Act [Song Beverly Consumer Warranty Act]?
The Court of Appeal said,
If manufacturers had prevailed in this, consumers after requesting relief
under the act would have to park their vehicle and walk to work, take
buses or taxis, or borrow a vehicle from a friend or relative. Knowledge
of the law is not required to see the absolute absurdity of this.
May manufacturers get an equitable offset for use of the defective motor
vehicle requesting relief under the act?
The Court of said,
The Act is very clear regarding mileage offset for use before the vehicle
is bought back. It is calculated per a well-defined formula and includes
only the mileage up to the first time that the vehicle is presented to
the manufacturer or its repair facility for a defect for which the vehicle
is being rejected. Thus if the vehicle manifested the defect at 3500 miles,
the offset may only be calculated with that number. If the court had accepted
the defense's argument, all mileage from 0 to 100,000 miles or more
could be offset. The effect could be that the vehicle manufacturers would
end up paying the consumer nothing at all, or very little. From this it
is easy to see where this foolishness originated.
Can a manufacturer get the presumption instruction when the instruction
is unavailable to the plaintiff?
The Court of Appeal said,
This little bit of obfuscatory nonsense is quite subtle. The presumption
states the following:
A consumer in a lemon law case must prove that the manufacturer was given
a reasonable number of attempts to repair the vehicle. In California,
for example, there are several ways for consumers to establish the presumption
that the manufacturer had a reasonable number of repair attempts. The
presumption is established if any of the following occurs within the first
18 months or 18,000 miles:
- The same defect is subject to repair four or more times; or
- The same defect is subject to repair two or more times, and is a serious
safety defect that is likely to cause death or bodily injury; or
- The vehicle is out of service for repairs for a cumulative total of more
than 30 days, for any combination of defects.
Thus, if a California consumer proves that a vehicle has been subject to
repair four times for the same problem within 18 months or 18,000 miles,
then the judge will tell the jury that the consumer has met his burden
of proving that the manufacturer had a reasonable number of repair attempts.
So far, so good: but what if the consumer had two repairs before 18 months
or 18,000 miles and 7 after? The presumption does not apply, however nothing
in the lemon law suggests that therefore the vehicle is not a lemon. If
however, the manufacturer's attorneys could get the Judge to include
the presumption language included in the jury instructions, the last thing
the jury would hear is 18 months and 18,000 miles, and this, coupled with
the two repair attempts, would mean that a perfectly legitimate lemon
law case could be unfairly lost for the vehicle owner. The Appellate Court
understood this and rightly ruled against.
Mercedes Benz drew a line in the sand. They decided this was a fight worth
the effort. The results indicate that in choosing battles it is wise to
have all of the facts.