July 28th, 2010

California Lemon Law: When Did the First Defect Arise?

In Lemon Law the Standard Reference Guide we write about mileage offset (also called mileage allowance). “Almost all states permit the manufacturer to deduct some allowance for your use of the vehicle. Some states allow a deduction only for the miles driven up to the first repair attempt. [California] This recognizes that the failure to repair the vehicle is the manufacturer’s responsibility, and that being forced to continue using a lemon is not a valuable benefit…”

Here is an example of how the mileage offset is calculated under the California lemon law. It also shows the difference to the consumer if he or she doesn’t get the correct first instance of the defects that make the case.

  • Vehicle has repeating transmission defects (4+) that despite all efforts, the dealer cannot repair.
  • The gross capitalized cost of the vehicle is $56,500.
  • The mileage for the first transmission repair is 2,105 miles; the second repair is 8,475 miles; the third repair occurs at 14,760 miles, and the fourth repair occurs at 26,300 miles.

This is the formula for calculating mileage offset using the numbers above:

[Mileage at repair attempt/120,000 (life of the average car)] x agreed upon value of the vehicle.

  • (1st repair attempt: 2,105 /120,000)   X $56,500 =$991 Offset
  • (2nd repair attempt: 8,475 /120,000)  X $56,500 =$3,990 Offset
  • (3rd repair attempt: 14,760/120,000)  X $56,500 =$6,949 Offset
  • (4th repair attempt: 26,300/120,000)  X $56,500 =$12,382 Offset

Imagine for an instant that the dealership personnel and the folks at the manufacturers are very aware of what determines the first repair attempt. Is it possible that they might be motivated to use the last repair attempt instead of the first? Or perhaps they might take steps to have your transmission defect appear as some other problem.

It always comes down to the repair orders, how accurate they are, always. Bad paperwork makes difficult lemon law cases. Be a neat freak. Instead of giving back $3990 through carelessness, get the mileage of the first repair attempt right and give back $991.

Remember, if you don’t properly document that first repair attempt, your repair orders may only show three repair attempts and you may need more. This delays the case and may mean more money given back to the manufacturer for usage. The California lemon law is the best in the country, but even the best law cannot be effective if the documentation is wrong.

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July 21st, 2010

The California Lemon Law- No Pain and Suffering

Tell that to Mrs. Jones, who has just lost three hours of work time (not reimbursed) trying to get a ride from the dealership back to work. She waited and waited to find out why they couldn’t fix another check engine light problem. This is the sixth time she has taken it in for this problem. The last time it failed she was on the freeway on her way to work, tooling along in the fast lane listening to her favorite tunes. Out of nowhere the engine coughs asthmatically and a host of red and yellow warning lights appear on the instrument panel. Somehow she made it to the shoulder across four lanes of traffic, and narrowly missed becoming a hood ornament on a speed crazed Peterbilt semi trailer.

When she finally decided to call about the California lemon law, she described these events and asked how much she could get for her pain and suffering. Regrettably for Mrs. Jones there isn’t any payment for pain and suffering. In addition to a replacement or refund, there are damages provisions, but none that allow for pain and suffering. A jury might be asked the question of whether the manufacturer has willfully failed to comply with the lemon law, in which case, it is possible to award a consumer with “treble damages.”

If you are in Mrs. Jones’s situation you may agree that there was a lot of pain and suffering, including fear for her life and loss of money as she goes back and forth to the dealer trying to get something done about her defective vehicle. The bottom line is that there simply isn’t any provision for pain and suffering in the California lemon law.

The lemon law is however your legal protection against being stuck with a car whose defects cannot be repaired.

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July 19th, 2010

CA Lemon Law: The Shaken Faith Doctrine

The CA lemon law protects consumers against vehicles with nonconformities that are covered under the warranty which substantially impair the use, value, or safety of the vehicle. What is a nonconformity substantially impairing the value of the vehicle?

1) A nonconformity may include a number of relatively minor defects whose cumulative total adds up to a substantial impairment. This is the “Shaken Faith” Doctrine first stated in the Zabriskie case. “For a majority of people the purchase of a new car is a major investment, rationalized by the peace of mind that flows from its dependability and safety. Once their faith is shaken, the vehicle loses not only its real value in their eyes, but becomes an instrument whose integrity is substantially impaired and whose operation is fraught with apprehension.”

2) A substantial nonconformity may include a failure or refusal to repair the goods under the warranty. In Durfee V. Rod Baxter Imports, the Minnesota Court held that the Saab owner that was plagued by a series of annoying minor defects and stalling, which were never repaired after a number of attempts, could revoke, “if repairs are not successfully undertaken within a reasonable time”, the consumer may elect to revoke.

Substantial Non Conformity and Lemon Laws often define what may be considered a substantial impairment. These definitions have been successfully used to flesh out the substantial impairment in the UCC.

The “Shaken Faith” Doctrine:

In addition to the question of substantial impairment, the severity of the defect can impact the question of how many repair attempts are reasonable. If a defect indicates that the particular item is of poor quality overall, or is so substantial that the dealer probably could not correct it to the satisfaction of a reasonable buyer, then the buyer need not permit further repair attempts.

Under the old Commercial Code, the seller is entitled to a reasonable opportunity to cure the defect before a buyer can revoke acceptance. However, when the buyer’s faith in the goods is so shaken that remedying the specific part or problem would not satisfy a reasonable buyer, the buyer may revoke acceptance, and get a refund without allowing any repair. Courts often call this the shaken faith doctrine.

Where a consumer has reasonably lost confidence in the performance of a vehicle, the shaken faith doctrine should allow the consumer to say, “Enough is enough,” and demand a replacement or refund under the California lemon law or other state lemon law without allowing any further repair attempts.

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June 25th, 2010

California Lemon Law: If it isn’t Written it isn’t True

We have written about repair orders and documentation is blogs in the past, but this is so important it can’t hurt to look at it again. It is at the heart of every California lemon law case. The following statement should be engraved in stone, or at least somewhere where the consumer can see it at least once a day.

“If it isn’t written it isn’t true.” Now just understand the concept. It isn’t altogether accurate, but an extremely workable rule. We realize of course that a client’s testimony is evidence and the truth too. But, when all is said and done, documented evidence to prove a point carries much more weight in the grand scheme of things than someone’s testimony that can be refuted when a jury is looking at a case. Why should we write about this? Because your lemon law case absolutely depends on a well recorded repair history. You will note that I said well recorded, that means accurate. If you proceed on the basis that the dealership is careful when recording all of the key data related to your repairs, you probably are open to the purchase of Los Angeles International Airport.

It isn’t that dealerships are knowingly altering the information (at least not all of the time). However, most service writers aren’t MENSA members, and like any other job they get busy and or lazy.

If the service writer fails to correctly write the date you take the vehicle in and then the day you pickup the vehicle, the wrong number of days the vehicle was in the shop will be recorded, and this may affect your ability to make a lemon law case. This is what you must do. Carefully read your service orders (going in for repair) and your service invoices (when you pick up your car) carefully, very carefully, look for the following things:

  • Correct date in and date out.
  • Correct VIN number.
  • Proper mileage/odometer reading (This also shows you if they test drove your vehicle.)
  • Did they write down the defects exactly as you described?
  • Were the repairs well-documented, with a list of all parts replaced?

I can’t tell you how many cases were delayed, made far more difficult, and even compelled the consumer to get more repairs because some of the repair orders were incorrectly filled out. Please do not forget; in the California lemon law, if it isn’t written it isn’t true.

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June 14th, 2010

California Lemon Law Still Works for Lemon RVs

Recently one of our readers asked if we still handle Lemon RV cases. Yes, the California lemon law still applies to motorhomes. I’m sure he was responding to the earlier reports from 2008 and most of 2009 when almost overnight the RV industry went bust. When it happened, many owners of diesel pushers, all classes of motorhome coach, 5th wheels and travel trailers were left high and dry. Companies who should have been honoring their warranties were gone.

Since the middle part of 2009 until now, the RV industry has been on the mend. Unfortunately many RV owners were stuck with bad vehicles and useless warranties and some still are. I can only imagine the misery of discovering that your warranty is gone and you own a lemon RV that leaks like a sieve.

Predictably many RV manufacturers who were poorly funded went out of business and others merged with companies that were stronger financially, or as we have noticed, had a more diversified manufacturing base. The following are a few of the manufacturers who survived and still honor their warranties:
• Thor Industries
• Winnebago
• Forest River
• Holiday Rambler
• Monaco
Many of these lines have retained their brand names but are in fact owned by other companies. If you think you have a lemon RV give us a call and we’ll see what’s possible under the California Lemon Law.

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June 11th, 2010

Lemon Law and the May Tag Man

I note from a recent article that Maytag, the appliance people, are issuing a recall for some of its washing machines. It looks like the “Maytag Man” isn’t going to be able to lay around on his duff eating Twinkies, watching day-time soaps waiting for something to go wrong with their washing machines.

At Norman Taylor & Associates we wrote the book on Lemon law. Every day we see defective automobiles and trucks. Many of the manufactures are issuing recalls and TSB’s (Technical Service Bulletins) on a weekly basis. Here’s the connection. If you hear manufacturers of any mechanical or electro-mechanical device spouting on about how their products never have problems, please feel free to roll your eyes and do that, “cover your mouth and cough while mouthing &*&&^#!”

Manufacturing perfection isn’t in the cards, no matter who the manufacturer is. As the British would say, “it just isn’t on.” Statistics, a branch of mathematics dealing with chance and probability, absolutely predicts that if you make enough of anything some of them will be defective. There is even a good chance that if you manufacture tens of thousands, even millions of the same thing there will be a disproportionate number of defective products.

High-volume manufacturing is what makes Lemon Law cases and gets the Maytag Man out there repairing washing machines and handling recalls. Sorry Mr. Maytag Man the vacation is over, you’ll have to tape your favorite episodes of the All My Children.

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June 10th, 2010

Lemon Law and Consumer Protection: What About Europe?

Have you ever been to one of those parties where everyone feels it necessary to dump on the United States? It’s very annoying for sure. If you stay at the party long enough you’ll discover we are to blame for everything from global warming to the decline of literacy in the schools. If you listen to these people they’ll bend your ear endlessly about how wonderful things are in France, Germany and other European companies. For such people everything we do is hurtful and destructive.

I prefer to look at the positive side. Anyone who has had to take advantage of the California Lemon Law or any of the other state’s Lemon Law knows it can be a real life saver. Americans take consumer activism seriously. It has a lot to do with fair play. We hate to see corporate abuse. We really hate people taking advantage of our good nature. What do you think?
When you pay thirty to fifty thousand dollars for a new car and a year later you realize you’ve spent more time at the dealer’s repair shop than you have vacation days, you’re ready for it to stop. In the US we have the tools to deal with our lemon cars and trucks.

So what about Europe? There is no Lemon Law, not as we know it. Going around the world from continent to continent it gets worse. It is a fact; no other countries have any kind of comparable consumer protections. You get a car with repeated engine defects, you’re stuck with it. Do me a favor party people, look around, there’s a tremendous amount of wonderful things happening in this country. Try talking about them at your next party. It won’t hurt.

It is worth noting the ancient concept of Caveat Emptor (let the buyer beware) that rose in the 1600’s no longer exists in the US. We at Norman Taylor & Associates and at Lemon Law firms all across America care about the consumer. Like willful children who misbehave, car manufacturers must be reminded that not only should they make better cars, they should also not insist that we put up with them when we have the misfortune of buying one.

I’d be very pleased to hear what you think about this. I’m betting most folks think this is a fine place to live and our consumer protections are part of what makes it special.

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June 8th, 2010

California Lemon Law: Dealing with Complexity

There are a few of us, mostly old f#*&#ts, who remember when opening the hood of our car didn’t cause us to stumble off dazed and defeated. In those days we could see down past the engine to the ground.

Now…it’s impossible; a terrible confusion exists beneath that thin bit of sheet metal. And see the ground?! Not without moving the car.

Here’s the question to you. Is your car too complex? And here comes the response. It’s a loud…YES! My answer is; it’s not too complex as long as everything works.

At Norman Taylor & Associates we talk to dozens of people with very bad cars every day. Most of them say the same thing; “it’s too darn complex! There are too many gadgets and gizmos.

And don’t get me started talking about computers and software: millions of bits and bytes of computer code – hardware and software. There are endless opportunities for something to go wrong. It shouldn’t be so easy to become another Lemon Law statistic.

I am very interested in what you think about whether the modern car or truck is too complex. There’s a more to say on this topic. Look for additional posts soon.

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May 25th, 2010

Don’t Let the Dealership Dictate the Dialogue on Your Lemon Car or Truck

Discovering that the automobile dealership where you have your lemon car repaired has been less that honest with you and that they deliberately mislead you, that they incorrectly document your defects and a really long list of other deceptions, is a hard lesson to learn. Here at Norman Taylor & Associates we see the worst, but we have also learned many things that consumers can do to preserve their rights under the California lemon law.

Today’s lesson is simple and relatively inexpensive. The short version can be stated in one sentence. “Always carry a camera when you drive your vehicle.” Why, you ask, should I do that?

Here is an example of why you should have a camera available. You come out and start the car in the morning. The check engine light is flashing. You drive the car to the dealer and before you get there the warning light goes off. You tell the service writer about the check engine light and he or she gives you the look, you know the one. It says, “If you say so, Pal.” After the repair attempt, the dealer will almost always say, “No Problem Found.” If you brought a picture of the Check Engine Light, they definitely would have made a stronger effort to find out what was wrong.

Here’s the best way to take the photos. Take a picture of the instrument panel in such a way as to include the mileage, or if that’s not possible something with a current date. Modern cell phones will allow you to take photos and sometimes to make short movies. This could be really helpful if you have a problem that causes the vehicle to run very rough, or the RPM needle swings up and down when the vehicle is at idle or the vehicle is pulling to the left or right. If your phone doesn’t have these abilities, you can purchase a disposable camera that will do the job. You just put it in the glove compartment. And what about those oil leaks? The dealership says they can’t see any. You show them pictures…now you are in control of the dialogue.

No one wants to buy a lemon car. Almost without exception, every potential client I’ve spoken with just wanted to buy a car that was trouble free. They didn’t want to be embarrassed when their vehicle stalled on the freeway, scaring the wits out of their passengers and wasting time that should be spent at work. They didn’t want to wait around while their car was towed to the dealership for endless repairs. It is bad to be the effect of life and our automobiles are definitely a part of life. It is far better to be cause over our lives, and knowing how to prepare for problems with our vehicles is just good common sense. Having a camera handy in your car or truck gives you an edge when seeking recourse under the California Lemon Law.

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May 20th, 2010

Nissan Defects – Oil Leaks or Oil Consumption

If you are driving a 2006 Nissan Sentra, Altima and some of the Infiniti models there’s a fair chance you’ve had a lemon car as defined by the California Lemon Law. In 2006 Nissan built quite a lot of cars that had oil consumption problems. These Nissan defects were a serious enough problem that they actually stopped selling some models.

Usually manufacturers who are having oil consumption problems with one or more of their models are careful to assert that the “standard” for consumption is 1 quart per 1,000 miles or less. When you ask them to provide information on how they arrived at this so-called standard, all communication ceases. Also if you talk to any Master Technician, they’ll tell you the 1 quart to 1,000 mile standard is a lot of nonsense. They might put it differently.

Manufacturers who are not having problems with oil consumption state that 1 quart per 3,000 miles (normal period between scheduled oil changes) is acceptable. Others say when their vehicles are operating properly they don’t use any oil at all! (Nissan!)

It’s important to know the difference between oil consumption and oil leaks. A leak can usually be easily found. One simple way is to take an old sheet, attach it underneath the car from the engine as far back as possible and go for a drive. Let the car warm up first. If there is a leak you’ll be able to see it and trace back to where the leak originated. Another common technique involves inserting a dye into the oil system and then tracing to leak back to where the dye is found. Consumption is another can of worms. The facts are obvious; engine defects which cause excessive oil consumption are conclusive. The connection between internal engine components and oil consumption is fact.

If you are experiencing these Nissan defects and think you have a lemon car, the dealer is going to dig in its heels and bring forth a long list of reasons why it is your fault and never theirs. We are familiar with these arguments and can often bring the weight of the California Lemon Law to bear on your problem.

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