Making lemonade out of lemons
Monday, February 26, 2001
By Patricia Sabatini, Post-Gazette Staff Writer
For the first two years that Tracy Magiske owned her shiny new 1996 Chrysler Sebring convertible, it was in the shop 30 times. The 30-year-old Jefferson Hills resident said the brakes kept failing, and Chrysler couldn't repair it. Finally, worried about a serious accident, she just stopped driving the car.
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| Attorney Craig Thor Kimmel represents auto buyers who believe their cars to be lemons. (Darrell Sapp, Post-Gazette) |
Early this month, nearly four years after leaving the showroom, Magiske got some good news. A Pittsburgh jury agreed her car was a lemon and ordered DaimlerChrysler to buy it back.
Although Magiske's case had a happy ending, she didn't have to wait four years to seek relief.
Under Pennsylvania's auto lemon law, if a substantial defect isn't repaired after three attempts or the vehicle is out of service for a total of 30 days, it's considered a lemon and the owner is entitled to a refund.
"The law is very specific and very simple," said Craig Kimmel of Kimmel & Silverman in suburban Philadelphia. It represented Magiske and is one of the largest lemon law practices in the country.
As long as the defect pops up for the first time within one year or 12,000 miles of purchase, the owner is covered.
Although car makers often fight it, they're required to repurchase a lemon or replace it, whichever the customer chooses. Most motorists opt for buy-backs because they don't want to continue driving the same type of car, Kimmel said.
Kimmel, 37, a Montgomery County native who said he got into the lemon law business because of his love for cars, said roughly 75 percent of calls he gets from consumers turn out to be legitimate cases.
Like most lemon law attorneys, Kimmel works strictly on contingency. If the consumer wins, the law requires the car maker to pay the attorney's fees. If the manufacturer prevails, he doesn't get paid.
Under the law, a defect is defined as any problem that "substantially impairs the use, value or safety" of the vehicle. That can include anything from a steering problem to water leaks or a bad paint job, he said.
"If you try to sell your car with obvious paint defects [such as bubbling or cracking], the car is worth less. That's a substantial impairment of the value."
Because the car maker has three tries to fix each defect, three trips to the shop for separate engine, transmission and brake problems wouldn't qualify.
In some instances, however, a motorist could have a claim after just one visit.
If the dealer flatly refuses to repair a defect, "the law would not require you to go back and hear the word "no" two more times," said Kimmel, whose firm has handled about 15,000 lemon law cases, mostly in Pennsylvania, since it was formed 10 years ago.
Problems that clearly don't qualify include things such as a broken dome light, chrome that keeps falling off or simple thumps and rattles, such as a noisy convertible top, he said.
It's also hard to prove a case based on poor gas mileage.
"If the car is getting 5 miles per gallon when it should be getting 40, that's the kind of spread you'd need" to have a solid case, Kimmel said.
The firm also gets calls from people wanting to sue for pain and suffering or lost wages, but the lemon law doesn't allow for such recoveries.
When manufacturers buy back a vehicle, they deduct 10 cents for every mile it was driven before the defect first appeared. For a lemon that started having engine trouble at 5,000 miles, for example, the offset would be $500.
In Magiske's case, DaimlerChrysler will pay more than $23,000 for her Sebring, which covers the value of her trade-in, the down payment, loan payments to date and paying off the loan. The mileage deduction was $734.
Kimmel's firm also has filed two class-action lawsuits. One alleges that 1999 Mitsubishi Galants' front brake rotors wear out prematurely. The second involves certain 1998-2000 Audi Quattro models that run out of gas even though the gas gauge shows plenty of fuel.
Audi issued a bulletin telling more than 48,000 Quattro owners to ignore the fuel gauge and buy gas based on the number of miles they drive, Kimmel said, a suggestion he calls "ridiculous."
The Pennsylvania Legislature is considering a number of changes to the 17-year-old lemon law, such as expanding coverage to leased vehicles and extending the deadline for reporting the first defect beyond the current one-year/12,000-mile limit.
Both measures are sorely needed, Kimmel said.
"Back when the lemon law was enacted, most manufacturers' warranties were only 12 months. Now, three years/36,000 miles is the standard," he said. "If you have a three- or four-year warranty, why should your rights change after one year when the manufacturer is still on the hook to fix that car?"
And with so many people leasing vehicles these days -- roughly 35 percent of new car consumers -- Kimmel believes it's time to cover them, too, although he noted that drivers of both leased and used vehicles can sue for breach of warranty under a federal statute known as the Magnuson-Moss Warranty Act.
The House's Consumer Affairs Committee is set to hold public hearings in March on possible changes to the lemon law.
So what should consumers do if they think they have a lemon?
First, keep good records, Kimmel said. "The more documents, the easier it is to show that your problems haven't been resolved."
Keep all repair invoices and make sure the description of the problem matches your complaint. "If it doesn't, make sure it's changed."
Some dealerships may try to steer you away from a lemon law claim by convincing you that multiple repairs are unrelated when they actually involve the same defect, Kimmel said.
Writing letters to the manufacturer may help get problems resolved more quickly, he said. Also, try meeting with the local manufacturer's representative.
Although the dealer or manufacturer may try to convince you otherwise, you aren't required to go through the manufacturer's mediation/arbitration process before pursuing a claim, he said.
Kimmel recommends reducing your chances of getting a lemon in the first place by doing your homework and choosing a vehicle with a good warranty, safety and repair record.
And when you're ready to pick up your new car, demand that it be perfect.
"That's when you have the most strength, the most leverage to get what you pay for," Kimmel said. "Try the air-conditioning, the radio, the tilt wheel, everything imaginable, check it. Don't take delivery until all problems are resolved."
It's also important to pay attention to "fit and finish" items, such as paint scratches, squeaky doors or windows that stick. "Those are given the least consideration after the sale," he said.
Above all, if you're having a problem, don't give up.
"Demand what you paid for," Kimmel said. "The manufacturer builds into every price 15 to 30 percent to cover the cost of warranty repairs. You've actually paid for the warranty when you buy the car."
Pursuing your rights under the lemon law can be a frustrating experience.
"That's why firms such as mine have been able to thrive," he said.
"It's really like pulling your own tooth out in front of the medicine cabinet. That's how painful it can be."
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