IS YOUR CAR A LEMON?

Besides our rent or mortgage payment, the most expensive thing that most of us pay for is our motor vehicle. Because of the significant amount of money that consumers invest in the purchase of a new car or truck, it is crucial that we get what we pay for. In other words, if we purchase an automobile that is advertised as new then it should actually be new. Instead it seems that more and more car manufacturers are selling defective vehicles and then are refusing to stand by their product. Car dealerships make matters worse by offering poor service and poor treatment to its customers. In many cases they go out of their way to make sure that the problem isn’t covered under the warranty.

So what happens when we purchase a new car, and it doesn’t work properly, and both the manufacturer and the dealership will not do anything about it? That’s where the lemon law comes in. It is a common mistake by consumers to think that just because their car has a defect or nonconformity that it must be a lemon. This is not always the case. In order for a car to be classified as a lemon there are several factors that must first be satisfied. Below are five basic questions we can ask to figure out if our car is a lemon. If the answer to all five of these questions is “yes” then Ohio’s Lemon Law may apply.

1. WAS THE VEHICLE NEW OR USED?

First of all, in order for a car to be classified as a lemon in the state of Ohio it must have been either sold or leased new. Used cars do not qualify for Ohio’s Lemon Law. There is protection that is available in the form of a Breach of Warranty claim under the Federal Law for used cars, but as far as the Lemon Law goes, the vehicle must be new. In the case of Curl v. Volkswagen of America the court held that a consumer who purchases a car after the dealership had already leased it would still qualify for lemon law, so basically the first true consumer to own the car should be able to enforce his or her rights under the lemon law.

2. IS THE CONSUMER PRODUCT A MOTOR VEHICLE?

In Ohio, the Lemon Law does not apply to any product that is sold. Computers, washing machines, lawnmowers, etc. may have legal protection available as long as they come with a warranty, but cannot be classified as a “lemon” under the law. Ohio’s Lemon law does apply to most types of automobiles whether it is a car, van, truck, motorcycle, ATV, or motorized scooter. For RV’s, the Ohio Lemon law only applies to the chassis, and not the trim items such as slide outs or the internal appliances. Anything that has pedals, such as a moped or bicycle would probably not qualify for Ohio’s Lemon Law. Also, commercial vehicles do not qualify for Ohio’s Lemon Law. Dump trucks, busses, trains, bull dozers, semis, some cargo vans, and other large trucks purchased in conjunction with a business may not apply. Many consumers will have a vehicle that is used for both personal and commercial uses. In those cases we look to the type of vehicle that it is and consider what the manufacturer’s purpose was when they placed the vehicle in the stream of commerce. It would be difficult to convince a judge that a dump truck is used for personal use as well as commercial use, but even if a Ford Taurus is used for some commercial purpose it may still qualify for lemon law.

3. WAS THE DEFECT REPORTED IN TIME?

Next, the problems or defects in the car must have been reported to the manufacturer or its authorized dealerships within the first year, or first 18,000 miles, whichever comes first. So if the car was not in the shop until it had 21,000 miles on it, it does not qualify for Ohio’s Lemon Law. Ohio’s Lemon Law is in place to ensure that vehicles sold as new will perform like new vehicles. It is inevitable that problems will eventually arise in any vehicle, but to be a lemon the problems must happen when you first get the car.

4. DID THE MANUFACTURER HAVE A CHANCE TO MAKE REPAIRS?

In order to qualify for a Lemon Law claim, the dealership must have failed to repair the defect in your vehicle within a reasonable time, or reasonable number of attempts. In some states, the law requires a final or last chance repair attempt. This is not a requirement in Ohio, but one or two repair attempts is usually not enough to try and say that a vehicle is a lemon. How do we know whether the repair attempts were reasonable? This is something that will ultimately be up to a jury to decide, but there are some instances where it is automatically presumed that a reasonable number of attempts or reasonable time to repair has occurred. If, within the first year or first 18,000 miles (whichever comes first), there have been three or more failed repair attempts to the same defect. In other words, if the vehicle has been in the shop three times for the same problem and the problem has not gone away, it is presumed that the manufacturer has had a reasonable number of attempts to repair it and the vehicle could qualify for Ohio’s Lemon Law.

If, within the first year, or first 18,000 miles (whichever comes first), there have been eight or more repair attempts to fix any problems, whether or not they are the same, then it is presumed that the manufacturer has had a reasonable number of attempts to repair it and the vehicle could qualify for Ohio’s Lemon Law. So, maybe this particular vehicle hasn’t had the same problem keep coming back, but different problems keep occurring and forcing the consumer to bring the vehicle back, and could cause the vehicle to be deemed a lemon.

If, within the first year, or first 18,000 miles (whichever comes first), there has been one unsuccessful attempt to fix a problem that could cause death or serious injury, then it is presumed that the manufacturer has had a reasonable number of attempts to repair it and the vehicle could qualify for Ohio’s Lemon Law. This is probably the mot difficult presumption to prove because in most cases the consumer will continue to drive the car. When asked, “If you knew your vehicle MIGHT blow up the next time you started it would you go start it?” Most people always answer, “no”. So just because a problem seems serious to the average consumer, that doesn’t necessarily mean it is the type of problem that is likely to lead to death or serious injury. Items such as air bags or seatbelts are good examples of defects or nonconformities that may apply.

Finally, if, within the first year, first 18,000 miles (whichever comes first), the vehicle has been in the shop for repair for 30 or more days then it is presumed that the manufacturer has had a reasonable number of attempts to repair it and the vehicle could qualify for Ohio’s Lemon Law. In fact, this is the strongest possible lemon law case a consumer can bring in the state of Ohio because it is one of the few issues that have been decided by the Ohio Supreme Court that relates to the lemon law. That case was Royster v. Toyota.

5. ARE THE DEFECTS SERIOUS?

When we spend a bunch of money on a vehicle, no problem seems minor, but the Lemon Law specifically requires that the defect or non-conformity substantially impairs the consumer’s use, value or safety. If there have been 10 repair attempts to repair the cigarette lighter it is going to be very difficult to convince a judge or jury that the defect substantially impaired the use, value, or safety. Defects in radios and CD players, or wind noises, and miscellaneous vibrations or sounds create difficult arguments. Problems such as transmission, brake, suspension, steering, radiators, or engine problems usually would qualify, and things like air conditioning, four wheel drive, and emission systems might fall somewhere in the middle.

Whether or not a defect is a substantial impairment requires us to look at it from the consumer’s perspective. For example, a person living in Florida would be affected in a different way than a person living in Alaska if the air conditioning went out. This analysis should be measured from a particular consumer’s perspective.

If the answers to all five of these questions were, “yes” then it is likely that the Ohio Lemon Law will apply. So what exactly does that mean? In short, it means that the consumer is entitled to a buyback or replacement. The consumer, if successful, will get to choose between a repurchase or replacement. A repurchase means that the consumer gives the car back, and the manufacturer will pay off the loan, and refund all of the consumer’s monthly payments as well as their down payments, minus any negative equity, GAP insurance, and in some instances, the manufacturer’s rebates. A replacement means that the consumer will keep the same loan and simply swap the collateral by selecting a new vehicle of equal or greater value. If the vehicle that the consumer chooses is of greater value, the consumer must pay the difference. Replacements are valued using the Manufacturer’s Suggested Retail Price (MSRP), and are typically MSRP to MSRP.

Also, before being able to file a lawsuit there are several things that need to be done. Many of these things are handled by the attorneys at Krohn & Moss. For example, if the vehicle was purchased using an employee discount there may be a binding arbitration clause. It is important to read every document carefully before signing anything. If there is a binding arbitration clause it does not mean that there is no lemon law, it simply means that instead of pursing the matter in court the matter would be pursued in front of an arbitrator. Some common arbitration boards in Ohio include the Dispute Settlement Board (DSB), the National Center for Dispute Settlement (NCDS), the American Arbitration Association (AAA), and the Better Business Bureau (BBB). The list of some of the manufacturers that require a consumer to go through an informal dispute resolution (IDR) process include: Ford Motor Company, Hyundai Motor America, Kia Motors America, Land Rover, Nissan North America, Porsche, and Toyota. Manufacturers such as Audi, BMW, DaimlerChrysler Corporation, General Motors, Honda, Isuzu, Jaguar, Mercedes, Mitsubishi, Saab, Saturn, Subaru, Volvo, and Volkswagen typically do not have the IDR requirement.

The attorneys at Krohn & Moss, Ltd. have been handling consumer issues for over a decade now, and are well equipped to help consumers determine whether or not their vehicle is a lemon. Even if the car is not a lemon there are many avenues a consumer may take in order to get recovery. Therefore, it is important to speak with an attorney if the delivered product does not meet the consumer’s expectations.

If you’d like to find out if you are entitled to money back or a replacement vehicle, call 1-800-US LEMON® (800-875-3666) toll free to reach Krohn & Moss for your FREE initial consultation! Or submit your information online for your FREE case evaluation.