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  Norman Taylor & Associates
  September 30, 2010

On behalf of its client, Azubueze Jiagbogu, Norman Taylor & Associates won a decisive victory against Mercedes Benz USA on issues relating to offsets claimed by manufacturers for years in computing how much a consumer was entitled to in a lemon law case. In addition, the court of appeal put to rest and old defense practice of creating confusion for juries in determining whether a consumer’s vehicle qualified for a refund or replacement under the law.

The Second Appellate District Division Four issued a unanimous decision authored by Justice Epstein on three critical areas:

1. Can continued use of a motor vehicle constitute a waiver of the consumer’s rights under the Act [Song Beverly Consumer Warranty Act]?

The Court of Appeal said, NO.

If manufacturers had prevailed in this, consumers after requesting relief under the act would have to park their vehicle and walk to work, take buses or taxis, or borrow a vehicle from a friend or relative. Knowledge of the law is not required to see the absolute absurdity of this.

May manufacturers get an equitable offset for use of the defective motor vehicle requesting relief under the act?

The Court of said, NO.

The Act is very clear regarding mileage offset for use before the vehicle is bought back. It is calculated per a well-defined formula and includes only the mileage up to the first time that the vehicle is presented to the manufacturer or its repair facility for a defect for which the vehicle is being rejected. Thus if the vehicle manifested the defect at 3500 miles, the offset may only be calculated with that number. If the court had accepted the defense’s argument, all mileage from 0 to 100,000 miles or more could be offset. The effect could be that the vehicle manufacturers would end up paying the consumer nothing at all, or very little. From this it is easy to see where this foolishness originated.

Can a manufacturer get the presumption instruction when the instruction is unavailable to the plaintiff?

The Court of Appeal said, NO.

This little bit of obfuscatory nonsense is quite subtle. The presumption states the following:

A consumer in a lemon law case must prove that the manufacturer was given a reasonable number of attempts to repair the vehicle. In California, for example, there are several ways for consumers to establish the presumption that the manufacturer had a reasonable number of repair attempts. The presumption is established if any of the following occurs within the first 18 months or 18,000 miles:

  • The same defect is subject to repair four or more times; or
  • The same defect is subject to repair two or more times, and is a serious safety defect that is likely to cause death or bodily injury; or
  • The vehicle is out of service for repairs for a cumulative total of more than 30 days, for any combination of defects.

Thus, if a California consumer proves that a vehicle has been subject to repair four times for the same problem within 18 months or 18,000 miles, then the judge will tell the jury that the consumer has met his burden of proving that the manufacturer had a reasonable number of repair attempts.

So far, so good: but what if the consumer had two repairs before 18 months or 18,000 miles and 7 after? The presumption does not apply, however nothing in the lemon law suggests that therefore the vehicle is not a lemon. If however, the manufacturer’s attorneys could get the Judge to include the presumption language included in the jury instructions, the last thing the jury would hear is 18 months and 18,000 miles, and this, coupled with the two repair attempts, would mean that a perfectly legitimate lemon law case could be unfairly lost for the vehicle owner. The Appellate Court understood this and rightly ruled against.

Mercedes Benz drew a line in the sand. They decided this was a fight worth the effort. The results indicate that in choosing battles it is wise to have all of the facts.

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