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Automobile Disputesby Philip Greenspun |
Site Home : Politics : Litigation : One Article
The implied warranty of merchantability generally runs for at least one year from the date or purchase or the length of the manufacturer's explicit warranty, whichever is longer. So if you get a six year extended warranty from, say, Ford, the implied warranty of merchantability runs for the full six years. Remember, that you can insist that Ford honor the implied warranty four years after you bought the car if the problem cropped up before your state's limit on implied warranty ran out (e.g. 11 months after you bought the car in a one year state) and you have been trying since then to get Ford to fix the problem (e.g. by writing letters or making phone calls). Ford cannot string you along with false promises and do-nothing 800 number services and then claim that your warranty has expired.
You might not have as good a top-of-the-head legal opinion, but you probably have better cognitive and persuasive writing skills. Furthermore, you can sift through more cases because he's already supposed to be an expert and can't bill his client for 40 hours of legal research.
Finally, you can win because the facts are on your side and the law in most states is on your side. Car manufacturers had it good back in 1910 when cars were new, but precedents and statutes enacted since then have made them responsible for their products.
Send either the zone office or the corporate president a letter listing clearly the problems with the car, explaining that those problems render the car unsafe, unusable and/or that they substantially impair the car's value.
Tell them that you believe that by refusing to fix these problems, they have violated your rights as a consumer (this is all you need to get statutory protection, but it is also good to cite the statute, e.g. "my rights as a consumer under MGL c. 93a") and that you are hereby giving them 30 days in which to fix your problems by either 1) fixing the car, 2) giving you money, etc. [fill in whatever you want]
At least in Massachusetts, small claims courts rarely award the treble damages to which you are, in fact, often entitled.
Do not delay too much when suing a big company. If they want to settle the case and/or treat you fairly, they can do so during the months between the time you file and the time your case is heard. You'll probably get a better settlement out of them if they know they'll have to show up in court than if they think you'll run out of energy sending "just that one letter" that they asked for.
In Massachusetts, you don't even have to worry too much about losing your district court case. As long as you reserve your right to a jury trial, i.e., by noting something in your complaint about wanting a jury to decide the facts, if you lose you can ask for a new trial with new findings of fact from a jury. At that point you can reassess your facts and maybe hire a lawyer.
Nolo Press publishes a great book called Everybody's Guide to Municipal Court that is intended for Californians but may be used by anyone litigating in the first level of court in any state. There are a lot of other Nolo Books that you'll find useful, although frankly the materials intended for lawyers in the law library really aren't so scary.
Another good book is Blashfield's Automobile Law, a 15 volume encyclopedia just devoted to lawsuits over cars, albeit mostly personal injury stuff. Sections 485 and 487 are interesting and will lead you to some good cases.
Finally, you'll want to read the "rules of civil procedure" for your state (ask the reference librarian) to find out how lawsuits go. Also, there should be books on "how to practice law in [your state]" (it is called "MASS Practice" here) and there is good stuff there about filing different kinds of suits.
You want to allege the maximum possible damages in your complaint, so remember to add up all your repair and rental bills. Also, hit them for days you couldn't use the car even if you didn't rent a car (the foundation for this is Gent v. Collinsville, 451 NE2d 1385, but you needn't cite precedent in your complaint).
Talk to the clerk at your local courthouse about serving the manufacturer (they'll tell you whom to use). You'll want to sue them in the court that is most convenient for you, which shouldn't be a problem since car makers do business everywhere. A good place to serve them would be their zone office in your state. An even better (i.e., cheaper) way to serve a Fortune 500 company in Massachusetts is by sending a certified letter return receipt requested to their president at the head office. This is only legal in some states and it only works if you are serving a foreign corporation, i.e., one that is based in another state.
Call the NHTSA at (800) 424-9393 to request the Federal Government's file on your vehicle and/or earlier models and you may find see enough reports in there to make it clear to a judge that the manufacturer knew or should have known about the problems you experienced.
If a maker concealed a problem from you, that they knew or should have known about, that alone may be enough to convince a court that your purchase of the car was induced by fraud and that the sales contract should be rescinded (they get the car back, you get your money back).
Anyway, my personal experience in dealing with big companies leads me to believe that if they'll talk to you person-to-person, you have a good chance of settling without having to sue. If, however, they won't answer your letters or are dealing with you high-handedly, then you'll probably have to sue if only to get their attention and bring them to the negotiating table. This is a greatly simplified version of the philosophy I set forth in my "Avoiding Litigation" article.
If you think your car has a manufacturing defect, contact your local Better Business Bureau. The BBB has an automotive arbitration program called Auto Line. The toll free number for around the country is 800-955-5100. This does only work for manufacturing defects in NEW cars, but is a great alternative to the costs and tme of court.
-- anonymous anonymous, January 31, 1998
I just went through a BBB Arbitration. Found the basic BBB to be OK, but that the arbitrator was hevily influenced by what the car manufacturer advanced as "normal operting condition" for the vehicle. In my case, I was seeking repurchase under my state's lemon law. I found that the sales advertisement (which states that my truck can be shifted into 4WD while in motion) did not match reality, and that the owners manual (which was not provided until after the sale) said that 1. this may not be possible in cold weather (snow, cold weather, go figure!) 2. the transfer case may make noise. I also had undercarriage rust problems.The BBB technical expert agreed that both were manufacturing defects. The Arbitrator ignored his findings totally.
So, my story is : be very careful in how you word your complaint, and (as the original page author suggests) perhaps go after the manufacturer for implied merchantability instead of lemon law violations.
JIM MOORE
-- James Moore, May 14, 1999
I just wanted to warn women in particular about the dangers about going alone to buy a car. I bought this car last week and after I signed all the necessary papers and gave them my money that was when they decided to tell me about some problems that the vehicle has. I then took the car to an inspector to be thoroughly checked out, and I found out that it is dangerous to even take the car across the street. The cv joint on the passenger side is held together by a clamp and the steering is gone as well. I feel like the dealer took total advantage of me and pushed me into the sale. Now he won't refund or give me another vehicle. I am stuck with this one. I told him it was his responsibility to make sure the car was at least safe before he sold it. He ended up saying all kinds of things to me and making me cry. He knew he had me again at that moment. Make sure if you buy a car to take a man with you. A mechanic if possible so you don't go through what I am going through now.
-- Pam McKay, March 12, 2001
Raceway Ford Deceives !
I purchased a 1998 Ford Explorer on 09/29/98, in Riverside, California. It was told to me, that it was a dealers demo and only had 5,000 miles on it. I was purchasing it as a new, never registered car. It was supposed to have a full three year warranty. Well, today, 08/15/01, I took it in to have a few small things fixed under warranty. But was told the warranty had expired in June 2001! Apparently the warranty was from the time the vehicle was put into operation (the dealers operation, not mine), and not from when I bought it. I got only 32 months of what I thought was a 36 month warranty from the time I purchased the vehicle. Seems like fraud to me. At no time during my purchase did the salesman ever indicate I had a reduced warranty. My advice to others, beware of buying a "new" car that has any miles on it. Warranties apparently are from the date the vehicle is put into operation (not necessarily your operation), and not when you purchase it "new". Car Salesman cannot be trusted!
-- Kim Martin, August 15, 2001
My dispute is with Chrysler. The power steering pump on my 98 Voyager rotted off and all I could get from Chrysler was the standard "not our fault" letter. They insult my intelligence with this shoddy composition of words. Can someone explain to me the "Five Star Service" rating for Chrysler dealerships? What a joke! Chrysler tries to draw in customers to their dealers by impressing them with a standard they govern to their own liking. Is there a dealership out there without the coveted "Five Star" award? If so corporate isn't telling. Gimme a break!
-- L. Hodgson, May 16, 2002
I purchased a Dodge Dakota new in April of 1999. After about 33,000 miles and being 4 months out of warranty, it developed a squeek in the front end . I took the vehicle back to the dealer that I purchased it from and asked them to find out what the problem was. The service manager told me that the left upper control arm bushings were bad and that the entire control arm had to be replaced because the bushings were not sold separate. I explained to him that this should not happen in a vehicle with this low of milage and to see if he could do anything to keep me from having to pay 400.00 plus to have it repaired. He called Daimler-Chryler and they agreed to warranty the part and to charge me warranty cost for the labor. It cost me 125.00 to have the repairs. Three months and approx. 1000 miles later the noise returned- only to be told this time that both lower control arms needed to be replaced - cost 900.00 plus - again called Daimler- they said they would pay 50% of repairs. I know that Im not the only person that has had this problem and feel that Daimler-Chrysler should find out why a part that is supposed to last at least 75,000 miles is breaking down after only some 34,000 miles and they should have a recall to take care of this problem.
-- Richard Andrews, December 1, 2002
The Big Three (Insurance, Banking, and Automobile Industries) want to get me out of my old, fuel efficient and space efficient automobile and force me into a NEW, RESOURCE DRAINING SUV.The Automobile Insurance Industry attempts to get me out of my 22 year old car and into a brand new SUV by NOT offering me Collision Insurance for my 22 old car.
The Banking, Insurance, and Automobile Industries want to add me to the list of INDEBTED CONSUMERS in this country too busy consuming to see the environmental destruction caused by buying Urban Assault Vehicles commonly known as SUV's.
Even though I pay for the maximum liability insurance coverage my insurance company allows me to purchase to protect other drivers on the road should I ever hit their car by accident, I cannot get collision insurance protection for my own older car!
I get both ample room to carry my equipment for my business AND I get fuel efficiency, all this from a 22 year old car! My 22 year old car has a COMBINED Interior Space to Miles Per Gallon Capacity that beats out most, if not all new cars on the road! The two old cars I own have worked marvelously, and are a primary reason why I can afford to run my own business. I save over $5,000 a year in automobile costs because my two old cars really cost me a fraction to maintain and operate versus purchasing a new car.
Imagine a $50,000 interest free loan to run your own business that you create yourself by driving older, fuel efficient and space efficient vehicles!
My $50,000 interest free loan has been my reality for numerous years. I created the interest free $50,000 loan by saving $5,000 per year for the last decade by driving two older cars.
And now, the Insurance Industry has seen to it that I will lose my self-earned free interest $50,000 loan through no fault of my own. During the Summer, I took one of my old cars to have smog work done on it. I had to leave the car for the smog work to be finished. Apparently, after the smog-tech worked on the car, the smog-tech drove the car to a smog "test-only" facility to get the actual smog certification license, and crashed my car while in route!
The smog tech managed to do in 2 miles what I had not done in 241,000 miles of driving! (the car had 71,000 miles on it when I bought it)
The smog technician, his insurance company, and my insurance company have all said they are not responsible for repairing the damage done to my car for a myriad of bizarre reasons. (the car still runs, but needs the typical front end work, grill, radiator, water pump, lights)
If I am forced to replace the car crashed by the smog technician,...I would NEVER buy a 22 year old car....My 22 year old car has been in my possession for the last 14 years, and I have taken meticulous care of it. In other words, I AGED MY OWN CARS GRACEFULLY, so going out and buying someone else's twenty two-year old car isn't a fair trade out. (I have some self-respect!)
I would be forced to spend a minimum of $7,000-10,000 for another car that I could guarantee to be as reliable as either of my two cars....AND I will have difficulty finding a replacement car that gets the equivalent gas mileage and interior space I already was getting. My Regional EMMY winning video business has been endangered if I truly must dig down deep to buy another decent car.
The Automobile Insurance Industry has brainwashed society into accepting the re-sale value of their own car as the maximum amount that can be spent to repair their vehicle should it be involved in an accident, even a minor accident.
Although this Sounds Logical in Theory....
...In Practice, it is UNETHICAL, AND should be ILLEGAL. This is economic discrimination practiced against people who can ill afford it, people on a budget who just don't want to spend a lot of money operating a newer car. Even though we don't spend a lot of money on fancier newer cars, we still take great care of our cars, and are responsible toward other drivers on the road by carrying plenty of liability insurance. Any car owner who Responsibly and Legally maintains their older car should be entitled to MINIMUM, BASIC COLLISION REPAIR COVERAGE should another car smash into them!
I'm not talking massive amounts of Collision Insurance Coverage...but, surely, $2,500-$3,500 dollar basic repair value coverage would not be unreasonable for ANY PROPERLY MAINTAINED VEHICLE, no matter how old or low the resale value of the car.
And of course, naturally aging parts such as the engine and transmission could be voided from the collision insurance policy for an older car, as could cosmetic repairs.
As it stands now, ANYBODY could crash into my one remaining 25 old car, and have NO liability toward fixing my car! The other insurance company would simply laugh at me and offer me a couple of hundred bucks, take it or leave it.
The 14 years I have spent being frugal and saving money because of my own personal responsibility toward my old car means nothing to an insurance adjustor.
I, on the other hand, carry maximum liability to protect other car owners should I ever hit another car. I carry legally binding liability auto insurance to protect other automobile owners who drive cars that cost TENS of THOUSANDS of DOLLARS. Yet Collision Insurance to protect my old car IS NOT EVEN OFFERED to me!
The Auto Insurance Industry won't offer Collision Insurance to me under any circumstance! Even with my spotless driving record for the last 3 years!
How did my cars get to be "old"? By being taken care of AND by NOT being in accidents.
Virtually all new cars get Lower Gas Mileage / Interior space compared to my two older cars, yet somehow the Insurance Industry deems my car as not worth repairing under ANY CIRCUMSTANCE!
Not only am I helping save gasoline by driving my fuel efficient older cars...
...I also help the environment by avoiding the consumption of a large quantity of oil, precious metals, electricity, water and numerous toxins that are needed to manufacture a new car.
And every month, I CONSUME LESS ENERGY because I have lowered my overall overhead. In essence, I am the best friend of those who love being energy hogs in this country, because the less I use the more there is for you!
I believe a Class Action Lawsuit should be filed on behalf of EVERY car owner who has had their older car "totaled" when it could have been repaired for under $3,000, especially if the car was fuel efficient and was maintained properly.
Old car owners victimized by the slimy practice of "Insurance totaling" easily fixable older cars should be eligible for a settlement from the auto insurance industry for up to $3,500. This could easily be millions of car owners in the last 10 years, multiplied by $3,500 plus court costs for each victimized consumer......
I have heard of Internal Insurance Documents that encourage, and possibly demand, the "insurance totaling" of older cars WHENEVER POSSIBLE!
The Automobile Collision Insurance Industry has lobbied all 50 state legislatures for enforcement of mandatory car insurance liability laws for ALL drivers while simultaneously practicing economic discrimination against drivers of older cars.
When any entity lobbies for the passage of laws, and wins, they MUST be held accountable to ANY and all acts of discrimination they commit.
If the Automobile Collision Insurance Industry faced imminent loss of mandatory insurance laws they had lobbied for due to their own economic discrimination practices, perhaps the Automobile Collision Insurance Industry would get it's act together and do the right thing and offer basic repair value collision coverage in their policies, to ALL car owners.
My one remaining functioning car is 25 years. Other drivers may "consume" 3-4 cars in that same 25 year span while I still drive the same car.
I am still driving a day-1 orginal family owned car....think of all the precious resources that were saved by NOT HAVING TO MAKE 4 ADDITIONAL CARS IN THAT TIME SPAN on my behalf..the water, precious metals, burning of oil to make a car, PAINT, ELECTRICITY, TOXIC CHEMICALS & TOXIC WASTE, none of these toxic resources were necessary in my case because I'm still driving the same car, with the same original ugly paint!
And if you can't say the same for yourself, all the more reason you should want to see endangered species such as myself be protected....I help balance out one other driver who may have gone through numerous cars in that same time period.
Ah you say, but technology has gotten better, I should be in a more fuel efficient car...
Sad to say....My 22 year old car HAS A BETTER INTERIOR SPACE TO MILES PER GALLONS RATIO THAN ALMOST ANY NEW CAR ON THE ROAD IN THIS DAY IN AGE!
And, my 22 year old car passes its smog test every time.
The fewer cars in society that we allow to age gracefully, the more we play into the hands of the Automobile Industry, the Insurance Industry, and the Banking Industry.
We enter the New Car Rat Race Syndrome, working overtime, making more money because we spend more money, and as a result, we consume more......and why...just so we can make an additional $400 dollar monthly car payment, and an additional $150.00- $200.00 dollar a month insurance payment to cover the new car!
And lets not forget the ever abrasive monthly car depreciation, which leads to additional consumption of resources so that you can work longer hours to pay for this "luxury" of paying for the depreciation of your vehicle.
Our "BIG THREE" CORPORATIONS benefit every time an old car is fraudulently totalled. An older car prematurely totalled equals A NEW CAR PURCHASE for the automotive industry, which results in a NEW CAR LOAN for the banks, which then results in a SIGNIFICANTLY HIGHER CAR INSURANCE PREMIUM!
Looks like the Big Three: Auto, Banking, and Insurance, make out handsomely by coercing people out of their older cars that are actually helping our economy and environment by reducing our need for middle eastern oil.
As I stated earlier, I am currently saving over $5000.00 dollars a year in expenses by driving my old cars, AND I also consume LESS RESOURCES because I have no car payment or ultra-expensive insurance payments to make every month.
Less overhead means less consumption of resources.
If less people bought new cars, IT WOULD FORCE THE CAR INDUSTRY TO MAKE AUTOMOBILES THAT OFFERED SUPERIOR GAS MILEAGE THAN OUR OLDER CARS...in which case, we would be foolish to keep our older cars.
BUT THE AUTOMOBILE INSURANCE INDUSTRY MAY NOT CURRENTLY MAKE A NEW CAR THAT IS MORE FUEL EFFICIENT AND SPACE EFFICIENT THAN MY 22 YEAR OLD CAR, and if they do, it is at best only microscopically better and therefore not worth the investment of my own precious financial resources.
THE AUTOMOBILE INSURANCE INDUSTRY HAS TAKEN AWAY THE COMPETITION OLDER CARS COULD PROVIDE AGAINST NEW CAR PURCHASES BY NOT OFFERING COLLISION INSURANCE TO PROTECT AN OLDER CAR!
THE INSURANCE INDUSTRY HAS REMOVED ALL SAFETY NETS FOR ANYONE DRIVING AN OLDER CAR.
The best incentive of all for driving your older car INSTEAD OF BUYING A NEW URBAN ASSAULT VEHICLE is it will FORCE the Car Industry to make a car that you would be foolish not to buy because it would be superior in efficiency and space design to the car you currently own.
If we can FORCE the Auto Insurance Industry TO do the right thing and allow us to protect our older cars via collision insurance at a reasonable price...
the circle of deception would be broken...
....AND less precious resources would be harvested for the making of new cars that don't offer any improvements over the old cars some of us already drive. If you are a Class-Action Lawsuit ATTORNEY who wants to right a blatant and arrogant wrong perpetuated by the Automobile Collision Insurance Industry and the Moronic Actuaries in this country who have no human sense, just lead running through both their pencils and their veins,...please contact me, a Winnable Class Action Lawsuit may be in your future.
-Alessandro Machi
-- Alessandro Machi, January 8, 2003
Update:I reported the business to the Bureau of Automotive Repair. (Best to do this as soon as possible) I went ahead and fixed my car. I am quite happy with the car, but unhappy at the complete lack of responsibility by the smog shop.
At this point I am planning to go to small claims court to collect my costs to fix my car.
-- Alessandro Machi, January 8, 2003
Update. Aug 08th, 2003I have filed a small claims court cast against the smog company that crashed my car and would not pay to fix it.
I also had a disappointing telephone experience with the California Insurance Commission. I was told that Insurance companies are allowed by law to economically discriminate against any group of car owners (such as owners of older cars)! I was also told that since Collision Insurance is not mandatory, the California Insurance Commission has no control over how inequitable a system is devised by the Car Insurance Industry in it's Collision Insurance Practices!
Huh???
To quote a famous Jerry Seinfeld episode, "that's like taking the top half of the muffin (the profitable part)!
The Car Insurance Industry has lobbied numerous states and had Liability laws passsed that force us to carry liability car insurance. The Insurance Industry should not be able to lobby and convince a state legislature to pass laws forcing car owners to buy certain kinds of car insurance while then giving the Car Insurance Industry carte blanche to give inadequate protection on other parts of their car insurance policies. All or nothing rather than the top of the muffin should be the order of the day, but sadly, it is not.
On a national note, I was horrified to read that our beloved congress nixed plans to raise the fuel efficiency of all U.S. cars to 40 MPG by the year 2015, even though their own constituents were in favor of this proposal.
-- Alessandro Machi, August 8, 2003
I won my court case!I won a $2,300 dollar judgement even though my car's resale value is probably less than $500!
Although I am happy with the verdict, I lost more than $2,300 when I factor in all the time I lost frugally repairing my car. By frugally repairing I mean I had the car repaired in steps. I didn't just hand the mechanic a blank check and say go for it. It took several months and many trial and error trips to get the car working the way it worked before the accident that was caused by my smog mechanic. This means that I missed phone calls as I have no secretary and most assuredly lost work as any repairs had to be tended to during the day. However, $2,300 is significant and I am happy with the judgement.
The judge stated to the aggressor that just because my car was only worth $500.00 he still was responsible to put it back in working order, to put it back to the way it was before he crashed it.
Since repairing my Subaru I have put an additional 13,000 miles on it and am up to 253,000 miles on the original engine! The money I continue to save driving this car is money that goes to my own video production business. I believe I am saving over $5,000 a year driving my old car, and that's money that I put back into the economy via purchasing yellow pages ads and other expenses related to my video business....
....and my Subaru still gets over 27 miles to the gallon!
-- Alessandro Machi, November 6, 2003
Further Update on my Small Claims Court Victory...I was speaking with a small claims court expert recently who stated I should not have "fully" won my court case and the only reason I won the full amount was because I had a pro tem judge. I think this person was wrong because there was no insurance company involved. A very important distinction to be made should you try and reclaim your expenses from the opposing party. A private party who did not have the proper insurance coverage SHOULD NOT enjoy the ridiculous biases put into place by our insurance companies when they have not been paying into the insurance pie pool to begin with.
Onto a separate but equal issue, car insurance companies do have the right to control value of items they insure, but to minimize the extent of renumeration given to a person's older vehicle to the point where it is LESS than what it costs to safely operate the vehicle and be in compliance with State and Federal laws while operating the vehicle is a form of fraud.
For instance, to legally and safely operate a vehicle on our roads today it must have functioning, tires, steering, windshield, brakes, doors, seat belts, rear view mirror, drivers side mirror, smog legal engine, muffler, shocks, transmission and functioning turn signals and headlights. Therefore any car that meets all of the above requirements has met a level of quality control that easily meets a minimum value of $2,500-3,000 dollars, aka the cost to have all of the above mentioned car parts working properly.
Of course it is possible to have scofflaws out there who would take a junked car, get it working and then crash it to collect insurance money. Two rules could basically eliminate that problem. In the event of a coverable accident, the insurance policy holder must own their car for three years to be elegible for more than the resale value that is typically offered by the insurance company, and two, the money could be reimbursible only upon proof that the damage was repaired and paid for.
I am offended that people that outright own their older cars are not protected against the loss of their car even as they carry liability insurance that protects cars that cost 5 times as much!
-- Alessandro Machi, December 26, 2004
