Ten Mistakes that are Made in the Lemon Law Hearing

1. Failure to show a common problem  John drives with a hard foot, Jane does not know how a high-performance car works.  Showing significant problems with the make and model can help rebut the blame the consumer defense.

2. The more problems the better.  Some consumers may believe that adding problems improves the case, but it can create a perception of a sensitive consumer.  Rarely  can systemic problems be shown on multiple components and its better to prove one claim than vaguely allege three.

3. Not calling an expert.

4. Lack of corroborating testimony  It’s frequently helpful to have friends and family testify to problems and reinforce

5. Overpromising in the test-drive  Even the worst criminal probably commits a crime once every 30 days, and the other 29, monitoring would show his lawful compliance.  Likewise, even defective cars function reasonably well most of the time which is why test-drives usually favor the manufacturer.  So if one is required, candidly say the problem cannot be duplicated.

6. I don’t feel the vehicle is safe.  Lemon law hearings are objective, with the judge requiring proof to find a vehicle is a lemon.  Simply repeating a statement about one’s belief in safety may not be sufficient.

7. Misevaluation of the claim  Historically, manufacturers Rejecting settlement  the plaintiff’s testimony.

8. Overconfidence about noise and other problems.  Many of these claims are not automatic and require thorough preparation and substantiation.  In Troy v. BMW (N.J.OAL. 1998) //njlaw.rutgers.edu/collections/oal/html/initial/cma5596-98.html, the Court said,

The Lemon Law is not designed to provide remedies to consumers for every problem which exist with a motor vehicle within the specified 18,000 miles of operation or two years following the date of original delivery. A “Lemon” is not any automobile that has some “defect.” Only such defects which qualify a “nonconformities” in accordance with the definition contained in N.J.S.A. 56:12-30 can qualify for treatment as Lemons where the manufacturer or dealer is unable to repair the nonconformity within the reasonable time standards established in the Act. 

Thus, the fundamental determination required in any “Lemon Law” case is whether the asserted defect is a “nonconformity.” If it is not, then regardless of whether or not the manufacturer or dealer has been unable to eliminate the defect, and regardless of how many times repairs have been attempted without success, or regardless of how long the manufacturer or dealer has retained the vehicle, no relief can be granted. Thus, the statute is not an all encompassing guarantee or insurance policy. It is instead designed to deal with significant problems which have “substantial impact on the “use, value or safety” of the vehicle. Anastasio v. Mitsubishi Motor Sales of America, Inc. OAL Dkt No. CMA 2100-90 (Apr. 23, 1990). 

    In Anastasio, the claimed defect was a water leak that entered the petitioner’s vehicle during certain rain and wind conditions. The defect could not be eliminated by the dealer in more than two repair attempts. The judge found that, despite the fact that the water leak still existed, there was “no evidence of a substantial impact on the use, safety, or value of the vehicle.” It was held that the Lemon Law was not designed to provide remedies to consumers for every problem that exists in a motor vehicle.

    In McGinn v. Hyundai Motor America, Inc., OAL Dkt. No. CMA7530-90 (Oct. 18, 1990) it was concluded that while the noise level of the engine when petitioner’s vehicle is driven in overdrive may be an annoyance, it did not constitute a defect. See also, Kriegisch v. American Honda Motor Co., Inc., OAL Dkt. No. CMA5413-90 (Aug. 8, 1990) (banging noise emanating from right rear portion of the vehicle was not a chronic problem, resulting in no impairment in the use, safety or value of the vehicle); Reid v. Mitsubishi Motor Sales of America, OAL Dkt. No. CMA6186-90 (Aug. 23, 1990) (intermittent “squealing” noise occurring when the brakes were applied does not rise to the level of a substantial impairment of value); Wiener v. Hyundai, 91 N.J.A.R.2d. (CMA) Vol. 36 (gear noise did not amount to substantial impairment); Dogra v. Mitsubishi Motor Sales of America, 92 N.J.A.R.2d CMA Vol 3, 73 (various annoying noises do not amount to substantial impairment). 

    In Pun Son Kim v. Chrysler Motor Corporation, OAL Dkt. No CMA 4020-98 (June 2, 1998) a clicking noise on hard acceleration was held not to be a substantial impairment. The Administrative Law Judge held that noise alone may be an irritant and a nuisance, but it may also be characteristic of the vehicle itself, under varying conditions, a characteristic which must be shown to substantially impair its use value or safety

    9. Not tying a problem to a material defect.  Is a malfunctioning air-conditioner a defect.  Sometimes not, but in one case, our expert was able to trace the problem to an engine issue which would meet lemon law criteria.

    10. Not showing a continuing problem  In some states such as New Jersey administrative proceedings, the consumer must show the problem still exists.  Talking about one’s fear, the history of the vehicle, or one’s expectations is insufficient.

 

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s