Another Defense Trick: Lack of Maintenance
Norman Taylor & Associates
September 16, 2009
How many of you keep track of the due dates on the maintenance required for your vehicle? I’m good with oil changes, but I don’t really keep good track of the special maintenance service. This could prove to be very costly in ways you might not imagine.
In a period of two weeks I have had two ladies contact me to review their prospective lemon law cases. They both had defects which they had reported with regularity to the servicing dealer. Both presumed that the dealer was performing the required maintenance on their vehicle, which had come as part of the purchase. As it turned out in both instances, the dealer failed to advise the client during their multiple warranty repair visits, that their vehicle was due for some sort of scheduled maintenance service. Later, after the lemon law claim became clear, the manufacturer blamed the client for failing to properly maintain the vehicle, which they maintained was the true source of the defect. There was enough plausibility that I had to decline both cases.
But it was disturbing to me that a client who had paid for maintenance as part of the purchase contract would have the duty to bring the maintenance schedule to the attention of the servicing dealer. Sure enough, in the warranty manual in each case, the duty lies squarely on the shoulders of the buyer. Nonetheless, what type of operation would neglect to point this out to a customer, especially with the idea of creating a repeat customer? I own a vehicle where maintenance came as part of the purchase price. My dealer keeps me informed always when my vehicle is due for maintenance. I don’t instruct them to perform it – although according to the manual it is my duty. My dealer wants my business, so he takes care of me. They bring to my attention anything that is due and it gets done.
In the two instances cited above, neither woman was informed they were due for maintenance, though it came as part of their purchase contract. Both told me they instructed the dealer to do whatever was necessary. Apparently this wasn’t good enough. But for the lack of maintenance, they both had legitimate lemon law claims. Failure to properly maintain a vehicle is a potential defense in a lemon law claim – if it relates to the defect about which the owner complained. Unfortunately for these two ladies, for lack of proper maintenance that related to their defects, I had to turn down their cases. Now they may be stuck with a vehicle that is plagued with a problem that will never get right, or will cost them countless visits until a technician is lucky enough to remedy the defect; probably after the warranty expires and she has to pay for the service.
Did the dealer see a lemon coming down the road? Is this why the dealer chose not to give the client the “heads up” that maintenance was due – because they knew they could blame the customer for lack of maintenance as a defense to the lemon law claim? Having practiced California lemon law for over 22 years, it would come as no surprise if this were true. Just when I think I’ve seen everything…
The moral of the story is, don’t rely on your dealer to keep you informed when maintenance is due on your vehicle – especially if you have already had the vehicle in for warranty repairs repeatedly. Don’t jeopardize your lemon law rights by giving the manufacturer ammunition to use against you by failing to adhere to your maintenance schedule.