- Different Problems
Although Plaintiff raised three different complaints that generally related to her “radio system” during the Lemon Law rights period, none of those concerns constitute a “serious safety defect.” Id Additionally, because each radio-related complaint was different (referring variously to the tape player, the speakers and a software fault), they do not constitute “the same nonconformity subject to repair three or more times. Turrell v Mercedes, Manufacturer’s Trial Brief
- Problem Not Identified in Prior Correspondence
Here, Plaintiff sent correspondence to MBUSA describing her alleged hesitation defect, but the correspondence did not describe any transmission, radio or brake system defects. (Ex. H, attaching Letters)
- Problem Did Not Substantially Impair Use, Value, or Safety
“It is generally understood by courts and commentators across the nation that a trivial complaint or merely aggravating defect does not constitute a “substantial impairment.” See, e.g.. General Motors Acceptance Corp. v. Hollanshead, 663 N.E.2d 663 (Ohio Ct. App. 1995) (finding no substantial impairment where “none of the problems defendant had with her vehicle affected its engine, drivetrain, or mechanical functioning in any way.”); Johns v. American Isuzu Motors, Inc., 622 So. 2d 1208 (La. Ct. App. 1993) (a “rattle” that could not be duplicated by technicians working on the car did not constitute a substantial impairment); State v. Martinez, 604 N.W.2d 304 (Wis. App. Ct. 1999) (holding that jury instructions defining “substantially” as “seriously” and stating that “the condition or defect must be more than an annoyance or minor inconvenience” were proper); Mercedes-Benz Credit Corp. v. Lotito, 746 A.2d 480 (N.J. Super. Ct. App. Div. 2000) (finding no substantial impairment where buyer complained of rotten egg smell that was merely a minor inconvenience, and a normal condition of that particular make of car); Jolovitz v. Alfa Romeo Distributors of North America, 760 A.2d 625,628 (Me. 2000) (holding that “substantial” means “being of considerable amount or intensity;” no substantial impairment where an annoying squeak and an occasional odor of gasoline were the only uncorrectable defects).” Turrell.
- Mileage rebuts claim of substantial limitation of use
One of the well-established standards considered by courts in determining whether the alleged defects objectively impaired the use, value or safety of the vehicle is the extent of the consumer’s use of the vehicle
Here, Plaintiff has driven the allegedly defective vehicle for significantly longer, and logged significantly more miles, than either of the plaintiffs in Mayhew and Freedman. Plaintiff has driven the subject vehicle for six years and seven months, and has logged at least 100,000 miles (if not more). Plaintiff admits that she drives the vehicle every day for both business and personal errands, and even drives it on numerous annual vacations throughout the southeast. Plaintiff cannot establish the objective element of the “substantial impairment” test an therefore cannot succeed on her Lemon Law claims.
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