Consumers should always document their case. This includes obtaining copies of warranty repair orders, keeping contemporaneous notes of who they talk to, what is said, and dates and times. Consumers should always put their complaints in writing and keep a copy of same. In any written correspondence, they should always explain how burdensome it is to return the car to the dealer for repairs and that the reliability that the they thought they were getting has been shattered. Any written correspondence with a dealer or manufacturer should be certified mail return receipt requested.
Manufacturers often claim the following in response to lemon law or warranty claims:
- Not the right # of repair attempts – As stated above, the lemon laws often define lemon-ness in terms of number of attempts to repair. The manufacturers often claim that they have not had the requisite number of tries to repair. They rely on the fact that the consumer does not have repair orders for all the times that the consumer has brought the car into the shop. They rely on the fact that the repair orders have different items fixed each time showing that they have not fixed the same thing. Consumers should respond by requiring that dealers always give them a warranty repair order. At least one state requires that the dealer give a warranty repair order to the customer. Consumers should also argue that these unwritten visits are attempts. Georgia requires that the dealer state on the warranty repair order how long the car was in the shop. The consumer should make sure the warranty repair order says this. At the very least, the consumer should keep a contemporaneous memo of the events stating who he talked to, what his complaints were and the mileage at the time, and the length of time the car was in the shop.
- Defect never existed or not the same defect – Often, the repair history doesn’t identify the problem-i.e. every repair order tries something different to fix the problem. The consumer should respond by saying that he always complained about the same problem. The consumer should insist that his words be written down. The service manager writing something different down, or attempting to fix something different each time strengthens the consumer’s case because it shows the defect could not be or was not repaired. The consumer should be careful to accurately state what the problem is and make sure the service manager writes it down. Replacing different parts doesn’t mean different things were fixed. The inference should be that fixing different things without fixing the problem proves none of those was the problem. The consumer should obtain copies of the manufacturer’s records that categorize repairs. All repairs that fall under the same category on the warranty reimbursement paperwork should serve as strong evidence that the defect was the same. The consumer should argue that the replacement of parts raises a strong inference that they were defective. Finally, the consumer should obtain copies of the manufacturer service bulletins. These bulletins contain a description of problems, proposed repairs, and sometimes information that will assist in proving substantiality of the defect. Further, the national Highway Traffic Safety Administration will send a computer printout of all reported problems for a model and year. Write NHTSA, Technical Reference Division, 400 Seventh St., SW, Washington DC 20590.
- The defect is not substantial – The manufacturer in a revocation case will argue that the defect is not substantial and the consumer should not be allowed to revoke. The consumer should look at cost of repairs. This information will have to come from the manufacturer or dealer records since most warranty repairs will not cost the consumer anything. Assume the manufacturer paid the dealer or dealers $1,500.00 to fix a $12,000 car. This should be considered substantial. The consumer should look to the vitalness of the defective part. The consumer should look to the number of attempts to repair. The greater the number and the greater the length the car was out of service, the more substantial the defect. Finally, the consumer should argue that his faith in the vehicle is shaken. He simply is not confident that his car is reliable. It is, in his eyes, a lemon.
- Manufacturers often claim driver neglect or abuse – The manufacturer may claim that the consumer has abused the vehicle and that is why the vehicle is defective. Our favorite case involved a young couple that purchased a Toyota four wheel drive pickup. The couple went four wheeling. There was a problem with the power of the truck eventually necessitating the tearing down of the engine. The consumer was unhappy and wished to revoke acceptance of the truck. The manufacturer claimed that the truck’s engine had gotten wet (an abuse) and it was therefore not responsible for the repairs. The consumer’s obvious reply is that four wheel trucks are made for four wheeling and every country boy knows that water and mud will splash when you go four wheeling.
- Our favorite defense is “they’re all like that” or “that’s normal” – Our client, a gentleman farmer, purchased a Ram Tough Dodge Ram Charger pickup with a turbo charged Cummins diesel engine. He had serious problems with a vibration in the rear end. After several attempts to repair, the dealer and the customer approached the service manager. The service manager, not realizing the consumer was the owner, told the dealer to advise that SOB owner that it was a truck, not a Cadillac. The consumer should smile with delight if this ploy is ever used.