Manufacturers Should Be Reaching Out to You But They Will Not
Manufacturers often provide booklets to consumers in the form of Owner’s Manuals and/or Warranty Manuals when products are sold. You have no doubt seen such booklets in the glove compartment of any newly acquired automobile. Oftentimes, such literature provides misleading information to consumers about what they must or should do if they believe they have a problem and want the vehicle repurchased. Manufacturers lists such things as their customer service center, the BBB, arbitration, or some other third-party resolution department as different options the consumer should follow in seeking Lemon Law assistance.
What all of these manufacturers’ literature have in common is that they attempt to convince the consumer that there is some sort of burden on them, as the consumer, to assert their rights in order to obtain Lemon Law assistance. This is deliberately done to lessen the amount of consumers that pursue their rights under the law.
In reality, the Song-Beverly Consumer Warranty Act places an affirmative duty onto the manufacturer to replace or repurchase the defective product if it has been unable to conform the good to its warranty after having been giving an opportunity to repair it. There is no requirement that a consumer first ask for a repurchase before the manufacturer’s legal obligations are triggered.
In the case of Krotin v. Porsche Cars North America, Inc., 38 Cal.App.4th 294, 303 the Court stated that “as a practical matter, the consumer will likely request replacement or restitution. But the consumer’s request is not mandated by any provision in the Act. Rather, the consumer’s request for replacement or restitution is often prompted by the manufacturer’s unforthright approach and stonewalling of fundamental warranty problems. An automobile manufacturer need not read minds to determine which vehicles are defective; it need only read its dealers’ service records…Computerized recordkeeping at dealership service departments could easily facilitate this task, even without any direct contact from the consumer to the manufacturer or any request for replacement or reimbursement to the dealership. It is thus apparent that a manufacturer need not be “clairvoyant”; it need only demonstrate more initiative in honoring warranties…As it stands now, however, the manufacturer has an affirmative duty to replace a vehicle or make restitution to the buyer if the manufacturer is unable to repair the new vehicle after a reasonable number of repair attempts, and the buyer need not reject or revoke acceptance of the vehicle at any time. The buyer need only provide the manufacturer with a reasonable opportunity to fix the vehicle.”
The Krotin case made it clear the misleading nature of any Owner’s Manual or Warranty Book that attempts to convince a consumer that he or she needs to do something to obtain a Lemon Law repurchase. All a consumer must do in California is provide the manufacturer with a reasonable number of opportunities to fix the defective vehicle. Once a “reasonable” amount of opportunities has occurred and the defect has not been fixed, the manufacturer should then be offering a repurchase or replacement to the consumer.
Why Then Do Manufacturers Not Live Up to this Legal Affirmative Obligation to Repurchase?
Simply because the law mandates the affirmative duty to offer a repurchase or replacement does not mean that large international multi-billion dollar corporations are quick to do so. Why? As one corporate representative stated under oath during a deposition, “we are not in the business of buying back cars; we’re in the business of selling them.” In other words, while the law may require that manufacturers should offer a repurchase, they simply don’t want to. As you might expect, repurchasing vehicles is not good for a company’s bottom line.
The Remedies under California’s Lemon Law Make it an “If A then B” Statute
Sometimes manufacturers will offer such things as a free month loan payment or some other nominal amount of money rather than a complete repurchase or replacement. Manufacturers imply that they are doing this out of “goodwill” and in efforts to make the customer happy. Oftentimes, such “goodwill” efforts require that the consumer sign a legal release stating they will not pursue any further rights.
Consumers need to understand that California’s Lemon Law can be understood and thought of as an “if A then B” statute; with “A” being a qualifying product and “B” being a repurchase or replacement. In other words, if your vehicle qualifies (A) then you are entitled to a repurchase or replacement (B). The Lemon Law specifically lists that you are entitled to reimbursement of what is paid or payable on the vehicle, details the specific mileage offset calculation, and identifies proper incidental damages. A consumer need not accept merely a nominal amount of cash or a free month or so loan payment. A consumer has a right to have the vehicle returned, certain moneys paid to date refunded (less a possible mileage offset deduction), and the vehicle loan paid off. A consumer need not be pressured into accepting anything less if they vehicle qualifies.