Manufacturers have for years been putting out false propaganda that a consumer does not have a lemon law claim unless he or she has four repair attempts for the same defect within the first 18,000 miles. This is simply incorrect. It is an effort by car manufacturers to discourage otherwise worthy consumers from pursuing claims for defective products.
The correct standard is whether the consumer has given the manufacturer a reasonable opportunity to repair the vehicle within the warranty period. A reasonable opportunity usually involves more than one repair attempt; I have seen few cases succeed with two repair attempts unless it’s a very serious defect which threatens the safety of the occupants of the car. "Within the warranty period" means exactly what it says: if your car has a drive train warranty for 70,000 miles and the drive train is defective, then you have 70,000 miles to have the manufacturer make the necessary repairs effectively. If they don’t fix the drive train, and if you have given the manufacturer a reasonable number of repair attempts, then you have a lemon law claim.
Also, if the manufacturer cannot fix the problem within the warranty period, and you notify the manufacturer or its dealership representative in writing within 60 days after the last failure to repair the problem, then the warranty does not expire as to that defect. Thus, if the consumer above had notified the manufacturer of its failure to repair the vehicle within 60 days after the last unsuccessful repair attempt, then the warranty does not expire as to that drive train defect.
There is something called the "lemon law presumption", and this is the only part of the lemon law where there is a requirement of 4 repair attempts within the first 18,000 miles. This is a legal presumption affecting the burden of proof in a lemon law lawsuit. Normally, the plaintiff bears the burden of proving that he or she has given the manufacturer a reasonable number of repair attempts to fix the vehicle. If, however, the consumer proves that he or she brought the vehicle in for repairs for the same defect four times within the first 18,000 miles, or if he or she proves that the vehicle was out of service 30 or more days within the first 18,000 miles, then the law shifts the burden of proof to the manufacturer to prove that it was not given a reasonable opportunity to fix the vehicle.
The consumer gets the benefit of the presumption if he or she has two or more repair attempts for a serious safety issue within the first 18 months or 18,000 miles. The safety issue must be a serious safety issue which threatens the safety of the occupants of the car.
As a practical matter, plenty of lemon law cases go forward without the lemon law presumption. The only requirement upon the consumer is that he or she give the manufacturer a reasonable number of repair attempts within the warranty period. If this is done, and the vehicle still is not repaired, the consumer has a lemon law case.
About the Author
Robert F. Brennan, Esq. is a principal with Brennan, Wiener & Associates, an AV-rated law firm in La Crescenta, CA. His firm specializes in consumer protection litigation, including lemon law, car dealer fraud and consumer class actions. He can be reached through his websitehttp://socallemonlaw.comSee Also:
- NEW Corporate Visions Positioning Approach Takes Marketing Brand Messages to Sales Street Level
- How to Collect Judgments
- Stay Connected: Here's Your Chance to Win $2,500 in Software
- MarketingSage Unveils The CMO's Recession Survival Guide
- Dempsey Partners Expands Claims Recovery Practice With Addition of Industry Veteran Jeff Phillips
No comments:
Post a Comment