This articles on the "Tampering Defense" to Lemon Law claims should be of special interest to Mercedes and BMW owners living in the Southern California area.
Here in Southern California, there are a good number of BMW and Mercedes dealerships around. In fact, a few years ago, I read that So. Cal. was the largest market in the WORLD for BMW’s and Mercedes. I don’t know if that’s still the case but S. Cal. continues to remain big enough to mean something to these German manufacturers.
Lately, both MBZ and BMW have responded to lemon law claims with the “tampering” defense, i.e. that the consumer tampered with the vehicle to produce repeated problems. In particular, MBZ and BMW have targeted persons of Armenian and Russian descent who have made such claims.
In fairness to BMW and Mercedes, there have been reported tampering cases where consumers with contacts within the dealerships have subtly altered the electronics of the vehicle to produce “codes”, check-engine lights and other electrical malfunctions which would then give rise to a lemon law claim after not being repaired after some repair attempts. However, what we’re seeing now is MBZ and BMW stretching the “tampering” defense to just about any lemon law claim, particularly if the complaint involves electronics. As with prior cases, they appear to be targeting Armenian and Russian consumers.
What is particularly unfair about this is the fact that MBZ and BMW vehicles frequently have legitimate electrical defects which give rise to legitimate lemon claims. This is one of the reasons that these manufacturers are stretching the “tampering” defense well beyond its proper boundaries.
If you have a lemon claim AND IF your vehicle’s defect is electrical in nature, AND PARTICULARLY IF you are Armenian or Russian, here is how you “short-circuit” the “tampering” defense:
1. When you bring your vehicle in for a repair attempt, deliver a written note to the service writer with the following: “Because of repeated instances of _______________________(describe electrical defect, i.e. “check engine light illumination”), I am considering bringing a lemon law claim for replacement or repurchase of my vehicle. I am concerned that [BMW] [MERCEDES] will accuse me of having tampered with the vehicle’s electronics to falsely create a lemon law claim. THEREFORE, I INSIST THAT, DURING THIS REPAIR VISIT, YOU UNDERTAKE ANY AND ALL NECESSARY INSPECTIONS OF THE VEHICLE TO EITHER CONFIRM OR RULE OUT THE EXISTENCE OF ANY TAMPERING.” You can bring this note to the dealership as many times as you want, but once will probably suffice.
2. Obviously keep a copy of the note for your own records.
3. If the vehicle remains unrepaired, you have your lemon law claim in place and you have essentially undermined their “tampering defense” by yourself throwing it into the open for an inspection specifically to either prove or rule out the tampering. This will obviously lend credibility to any future lemon law claim you may have.
I hope this short article has been of assistance to you & thanks for reading.
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 website:http://socallemonlaw.comSee Also:
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