State Lemon Law Coverage Terms: Dissecting the Differences Philip R

Loyola Consumer Law Review

Volume 11 | Issue 1 Article 5

1998 State Lemon Law Coverage Terms: Dissecting the Differences Philip R. Nowicki PhD. Executive Dir. Of the International Assoc. of Lemon Law Administrators

Follow this and additional works at: http://lawecommons.luc.edu/lclr Part of the Consumer Protection Law Commons

Recommended Citation Philip R. Nowicki PhD. State Lemon Law Coverage Terms: Dissecting the Differences, 11 Loy. Consumer L. Rev. 39 (1998). Available at: http://lawecommons.luc.edu/lclr/vol11/iss1/5

This Feature Article is brought to you for free and open access by LAW eCommons. It has been accepted for inclusion in Loyola Consumer Law Review by an authorized administrator of LAW eCommons. For more information, please contact [email protected]. State Lemon Law Coverage Terms: Dissecting the Differences by Philip R. Nowicki, Ph.D.

State "lemon laws" provide consumers statutory protection against The author did his doctoral defects when purchasing vehicles. dissertationon lemon laws in 1987 Attorneys and consumers should be at the Syracuse University Maxwell aware of the fact that state "lemon School of Citizenship & Public laws" differ significantly from state to Affairs. From 1988-96, he served as state. Uninformed consumers, Executive Directorof the Lemon Law unaware of the differences in state ArbitrationProgram in the Florida lemon laws, may inadvertently Office of the Attorney General. He relinquish critical statutory protections has drafted model lemon law across state when purchasing vehicles legislationfor the Council of State lines. Governments in 1988 and the This article analyzes the lemon law coverage terms in effect July 1, 1997, in National Conference of State all 50 states as well as the District of Legislatures in 1990. Last year, he Columbia.1 Section I addresses general served as Executive Directorof the warranty coverage terms, differing InternationalAssociation of Lemon impairment standards, and issues Law Administrators (IALLA), a non- relating to place of purchase or profit organizationformed in 1997. registration. Section II delineates The author thanks Janet Smith, coverage term issues of non-traditional FloridaAssistant Attorney General, vehicles and non-traditional usage of for her help in editing the article. vehicles. Section III addresses coverage term issues pertaining to rights and reporting periods and attempts by purchased. The place of purchase consumers to repair defects. This determines which state's law the article concludes by analyzing the 1997 consumer must look to for protection. legislation and the possible impact it After determining the applicable state consumer must look to the may have on lemon law coverage law, the terms. general warranty coverage terms since each state's general warranty coverage differs significantly. Finally, a state's SECTION I definition of impairment may create A threshold issue for any lemon law barriers for consumer protection. These case is where the vehicle was three issues are addressed in this

1998 Loyola Consumer Law Review * 39 section. coverage determinant. Seven other states are even more restrictive, Place of Purchase or Registration limiting coverage to those consumers who purchase (or, if applicable, lease) In 25 states, lemon law coverage is and register vehicles in those states.8 limited to vehicles purchased in that However, in one of these states, 2 state. Fifteen of these states explicitly Indiana, nonresidents who purchase or cover leased vehicles which must be lease the vehicle in that state are also acquired in those states for the lessees covered. 3 to receive protection. Another state, The coverage variations create Iowa, covers vehicles purchased or interesting scenarios. For example, leased in that state and vehicles Maryland consumers who buy in West purchased or leased in other states if Virginia can opt for coverage under the consumer is an Iowa resident at the both lemon laws. Conversely, West time his or her rights are asserted. Virginia consumers who buy in Some lemon laws, such as those of Maryland become lemon law "nomads," Arizona, Illinois, South Dakota and falling outside the scope of either Virginia, are silent as to the place or state's criteria. Across the country, type of transaction that triggers double or no coverage is more the rule, coverage, but agency officials are and single state coverage the exception, inclined to deem an in-state sale (or, if when consumers buy their vehicle in applicable, lease transaction) as the one state and register it in another. 4 governing criteria. New Hampshire Consequently, the majority of and Ohio are also silent. However, transferred military personnel and New Hampshire recognizes in-state those who move to other states after acquisitions or registrations in its acquiring their vehicles will find criteria for eligibility for state-run themselves with a choice of lemon law arbitration.' Ohio covers in-state sales remedies, or none at all. and also recognizes coverage for vehicles registered in that state, but Warranty Coverage Terms purchased elsewhere, viewing it as a condition for manufacturers to be The terms of the vehicle's warranty licensed to do business in that state.6 can play a factor in what is and what is The District of Columbia and 12 other not covered under a state's lemon law. states, besides New Hampshire and For example, several states tie coverage Ohio, provide coverage for vehicles of a vehicle's defects to the terms of the purchased or registered in those states. manufacturer's written warranty. In However, Vermont requires the in-state Alabama, Alaska, Colorado, Georgia, registration to occur within 15 days of Kentucky, New York, South Carolina, lease or purchase. South Dakota and Wyoming, coverage Alaska, Maryland and Oklahoma of a vehicle's defects is tied to the terms use in-state vehicle registration as the of the manufacturer's written

409 Loyola Consumer Law Review Volume 11, number I warranty. Fifteen states, Arizona, Vermont, consumers get the benefit of California, Connecticut, Maine, any express warranty as that term is Montana, Nebraska, Nevada, North defined under their state's Uniform Carolina, North Dakota, Oklahoma, Commercial Code. It appears that, in Oregon, Tennessee, Texas, Utah and these states, certain representations Wisconsin, appear to have the same made by the dealer could create application. They limit warranty warranty rights that the manufacturer coverage to any applicable express would have to honor. Michigan has the warranty and the manufacturers' same provision, but limits such written warranties disclaim all other warranties to those made by the express warranties. manufacturer. Consumers in Idaho also Six states, Delaware, Louisiana, get the benefit of any express warranty, Minnesota, Ohio, Pennsylvania and other than statements of value, opinion West Virginia, also limit coverage to or commendation of the vehicle, or the manufacturer's written warranty as representations of general policy it "pertains to the vehicle's condition concerning buyer satisfaction. Indiana and fitness for use." New Jersey has consumers are covered when the defect the same provision, but also provides or condition does not conform to the implied warranty protection (discussed applicable manufacturer's warranty, or below). In Mississippi, Missouri and is one that substantially impairs the New Mexico, the consumer's warranty use, market value, or safety of the rights stem from the manufacturer's motor vehicle. The second provision is written affirmation of fact or promise unique for any state since it is set apart in connection with the sale of the from the first provision and the rest of vehicle which relates to the nature of the statute does not confine it to any the material or workmanship, or type of warranty. promises to meet a specified level of In the District of Columbia and New performance over a specified period of Jersey, consumers get the protections of time. In these states, a brochure the manufacturer's implied warranty. prepared by the manufacturer that Virginia and Washington consumers promises "an especially quiet ride" get the benefit of any implied warranty. may create a warranty obligation that In Kansas, Massachusetts and Rhode the manufacturer might otherwise not Island, consumers are covered in have to meet. Arkansas, Florida, similar fashion. The Massachusetts and Hawaii, Iowa, Virginia and Rhode Island laws cover defects that Washington have similar language, but do not conform to any applicable also apply it to other manufacturer express or implied warranty. In Kansas, expressions. Arkansas, Virginia and any applicable warranty can provide Washington consumers also get certain coverage. Maryland consumers get all implied warranty rights (discussed express and implied warranty coverage below). provided under that state's Uniform In Illinois, New Hampshire and Commercial Code. The implied

1998 Loyola Consumer Law Review 0 41 warranties are of merchantability and value are not likely to be covered, since fitness for a particular purpose.9 In they do not impair the vehicle's use. Arkansas, consumers get the benefit of States use the term "value" the implied warranty of merchantability. differently. For instance, Wyoming uses Consumers in these jurisdictions the term "fair market value" instead of should have implied warranty rights at "value." While twenty-five other states least for their respective state law's use "market value."' 5 The word term of protection, or the term of the "market" makes the impairment test manufacturer's express warranty, less subjective. Presumably, the test is whichever occurs first.1° whether the defect substantially reduces the resale price of the vehicle, Impairment Standard when compared to similar vehicles without the defect. In Texas, the defect One area where states appear to be must cause a substantial loss in market in agreement is the use of the term value. Massachusetts arbitrators must "impairment." In most states, to qualify consider "whether the motor vehicle's for relief, a defect or condition must market value is at least ten percent substantially impair the use, value or lower than it would have been, but for 11 safety of the vehicle. the nonconformity(s)."' 6 In thirty-one states, the words, Many states use the term, //use," "value," and "safety," comprise "impairment of the vehicle to the 7 the potential elements of vehicle consumer" to determine impairment. impairment. 12 One state, Texas, This phrase makes the impairment test requires that the defect or condition more subjective. Consequently, the test affecting safety is one that creates a for impairment of use, value or safety serious safety hazard. Fifteen states includes a personal dimension, 3 refer only to "use" and "value."' New provided the consumer's concerns are York and North Carolina simply use genuine or reflective of a particular "value." The District of Columbia, need or purpose. Interestingly, 11 of Iowa and Tennessee specify the these states also use the term "market elements of vehicle impairment by value" instead of "value." 8 Many other definition only. states, however, do not refer to Often, the consumer only needs to impairment "to the consumer." 9 This prove one element of impairment to suggests that more weight will be become eligible for protection under given to other tests of impairment, law. In some states,"4 the state's lemon including warranty repair costs, however, the consumer must prove vehicle down-time, the projected life of that the defect impaired both the the component with the defect, vehicle's use and value. Consequently, technical reports, or the "reasonable cosmetic flaws such as bad paint, person" standard. frayed upholstery or trim, or even a Suprisingly only a handful of misaligned dashboard, which affect states20 define "impairment." In some

42* Loyola Consumer Law Review Volume 11, number 1 instances, the definitions elevate the coverage between states applies degree of impairment the consumer equally to leased, demonstration and must prove. In Alaska, for impairment used vehicles as well as vehicles used of use, the defect must be one that for business. "prevents a motor vehicle from being operated or makes the vehicle unsafe to Recreational Vehicles and operate." In Georgia, for impairment of Conversion Vehicles value, the defect must "diminish the resale value of the new motor vehicle Twenty-seven states have lemon more than a meaningful amount below laws protecting purchasers of motor the average resale value for homes. In seven states, the entire comparable motor vehicles." In other vehicle is covered including living instances, the definitions appear to facilities. 21 Ten states either exclude help consumers. Tennessee, living facilities or specifically exempt Washington and the District of facilities for cooking, sleeping, waste Columbia only require the consumer to disposal, etc.22 Consumers in these prove the vehicle's resale value has states can expect coverage for such been diminished "below average." The problems as water leaks, wind noise or benefits to consumers are less clear in defects in the cabin affecting passengers. Virginia, where consumers must show Ten states limit coverage to the chassis the defect renders the vehicle "unfit, or self-propelled portion of the unreliable, or unsafe for ordinary use vehicle.23 Most recreational vehicle or reasonable intended purposes." manufacturers utilize a separate chassis Given the wide of array of use, value manufacturer such as Chevrolet, and safety issues common to lemon Freightliner, Ford, GMC, Oshkosh or law disputes, some of these definitions Spartan. Even for the chassis, are arguably both a help and a hindrance consumers are likely to receive a as to what constitutes substantial separate warranty for the engine and impairment. transmission from such companies as Cummins Engine and Allison SECTION II Transmission. Since a consumer's rights are often tied to the manufacturer After ascertaining which state's that issues the warranty, recreational lemon laws apply and how much vehicle owners who experience a broad warranty coverage is afforded, a array of problems may be pitted consumer must next determine if their against four, five, or even six particular vehicle is afforded manufacturers in a lemon law action.24 protection. Non-traditional vehicles Most lemon laws cover conversion such as recreational vehicles, vehicles. Conversion vehicles are conversion vehicles, trucks, and vehicles sold with modifications made motorcycles are covered in some states by a company other than the while not in others. The variety of

1998 Loyola Consumer Law Review * 43 nameplate manufacturer. However, liable under Connecticut's law. twelve states either specifically exclude For many truck owners, one pound conversions or may not cover makes all the difference in lemon law conversions where the statutory coverage in several states. Trucks such definition of "manufacturer" is limited as the Chevrolet C/K Crew Cab 4-door to the entity that manufactured the pickup and the GMC Sierra Crew Cab vehicle. Those states are Alabama, 4-door pickup can carry a gross vehicle Alaska, Indiana, Kansas, Kentucky, weight rating of 10,000 lbs. 28 and are Massachusetts, Nevada, Ohio, Oregon, covered in Arkansas, Hawaii and Iowa, Rhode Island, South Dakota and which include vehicles up to that Wyoming. Montana covers vehicle weight limit, but not in Alabama, conversions, except pickup truck Georgia, Montana and South Dakota, campers, while North Dakota excludes which cover vehicles less than that interior equipment from its conversion weight limit. Several other states utilize coverage. a 10,000 lb. limit, but apply it to declared gross weight (Arizona), or Trucks and Motorcycles unladen weight (Wyoming), or registered gross weight (North All lemon laws cover light trucks Dakota). Florida has a limit of up to that are used primarily for personal, 8,000 lbs. gross vehicle weight, which is family or household purposes. the maximum gross weight as declared Colorado, Michigan, Minnesota and by the owner or person applying for Virginia specify pickup trucks in their registration.29 Ohio caps coverage at a motor vehicle definitions. Kentucky one-ton carry load, which is limits coverage to vehicles with no comparable to a 10,000 lb. gross vehicle more than two axles. weight rating. Thirty-one states limit truck Fourteen states and the District of coverage by weight, but few share the Columbia do not indicate a weight same limit.25 At one end of the spectrum, limit; however, in six of these states, South Carolina and West Virginia Alaska, California, Massachusetts, exclude any truck with a gross weight Missouri, New Jersey and in excess of 8,000 lbs. This threshold Pennsylvania, trucks are either excludes such trucks as the Ford F-250 excluded if used for commercial 4x4, the Chevrolet 3/4-ton 4x4, and the purposes under the definition of Dodge Ram 2500.26 Conversely, "motor vehicle" or under the definition Connecticut covers passenger and of "consumer" which conditions commercial motor vehicles weighing primary use of the vehicle to personal, up to 26,000 lbs. gross vehicle weight family or household purposes. These rating. Consequently, Class 6 truck caveats essentially eliminate most big manufacturers such as Hino, Mack and trucks from coverage. Of the other 27 Navistar, generally not associated eight states, Nebraska provides the with lemon laws, may be potentially broadest coverage, having no weight

44* Loyola Consumer Law Review Volume 11, number I restrictions, while expressly covering the warranty to enforce the obligations use for business purposes.z In of the warranty." In one of these states, Nebraska, companies that purchase Ohio, a 1994 decision by a state Class 8 trucks (exceeding 33,000 lbs. appellate court upheld such an gross vehicle weight rating)3 1 from interpretation. B Another, Montana, such manufacturers as Freightliner and covers any other person entitled to the Kenworth are uniquely afforded lemon benefits of the warranty. law protections. Lessees may be covered in Idaho Twenty states cover motorcycles, and Nevada. These states also cover either expressly in the lemon law other persons who can enforce the definition of "motor vehicle" or by warranty terms, but include the clause reference to the registration definition under the definition of "buyer" rather of "motor vehicle" which includes than "consumer." The lemon laws of motorcycles. 2 Washington requires the Alaska, Kentucky and Pennsylvania motorcycle to have an engine exclude mention of leased vehicles, displacement of at least 750 cubic lessees, or other persons who can centimeters. Virginia's law applies to enforce the warranty terms. Michigan both motorcycles and mopeds. Texas' expressly excludes lessees from its law, in addition to motorcycles, covers definition of "consumer." all-terrain vehicles. Twenty states expressly cover demonstrator or previously untitled Leased, Demonstration and Used vehicles. y One of these states, Texas, Vehicles covers any motor vehicle not previously subject to a retail sale. Leased vehicles or lessees are Another, Wisconsin, applies to expressly covered in thirty-two states executive vehicles as well as 3 3 and the District of Columbia In 14 of demonstrators. these states, eligibility is conditioned New York covers used vehicles upon the length of the lease, ranging provided they are purchased, leased, from as little as a lease agreement that transferred or registered in that state exceeds 60 days for New Jersey to a within the first two years or 18,000 minimum two-year lease for New miles of operation from the date of 34 Hampshire and Vermont. original delivery, whichever occurs In eleven states, consumers who first. In twenty-two states and the lease vehicles may be covered if their District of Columbia, used motor lease agreements hold them vehicles appear to be covered in the responsible for having warranty items definitions of "consumer," which refer 5 repaired. In these states, the definition to "any person to whom such motor of "consumer" includes a separate vehicle is transferred during the clause that creates coverage for "any duration of the warranty period." 8 A other person entitled by the terms of similar clause is found in the laws of

1998 Loyola Consumer Law Review * 45 fifteen other states; however, the requires use of the vehicle for personal, transferee's use of the vehicle must be family or household purposes at least for the same purposes as the transferor forty percent of the time. who either acquired the vehicle for The term "consumer" is broadly purposes other than resale, or used the defined in some states, thereby, vehicle primarily for personal, family possibly allowing for coverage of a or household purposes.39 Consequently, business vehicle. Arizona, Arkansas, if the original consumer transfers the Connecticut, Delaware, Indiana, Iowa, vehicle to a dealer, who subsequently Kansas, Montana, New Hampshire, sells the used vehicle, it is unclear North Carolina, Oklahoma, Rhode whether the second consumer is Island and Wisconsin define a covered. Seven other states, Alabama, I/consumer" as the purchaser (or, if Arkansas, Iowa, Michigan, North applicable, the lessee) of the vehicle, Carolina, South Carolina and South other than for purposes of resale, and Dakota do not reference transferees coverage is not conditioned upon any under their definition of "consumer," particular use of the vehicle. The but do include "any other person District of Columbia and Utah have the entitled by the terms of the warranty to same general provision, but the District enforce its provisions." Consumers of Columbia limits coverage to natural who buy used vehicles during the persons and Utah restricts coverage to warranty coverage periods of the laws individuals. Kentucky covers any of these states may have residual resident person who buys a vehicle in benefits.40 that state. Other states have conflicting Business Use clauses in their definition of "consumer" making coverage of Vehicles acquired by businesses or business usage of the vehicle unclear. used primarily for business purposes For example, Colorado, Idaho, are likely covered to some degree in Louisiana, Nevada, New Mexico, forty-six states, plus the District of North Dakota, Oregon and South Columbia. However, only Nebraska Carolina define a "consumer" as "a expressly and unconditionally person who normally uses the vehicle provides protection for consumers who for personal, family, and household primarily or exclusively utilize their purposes," with a further reference that vehicles for business purposes. On the also includes "any other person other hand, Massachusetts expressly entitled by the terms of the warranty to excludes coverage when primary use enforce its obligations." Eight other of the vehicle is for business purposes. states use the same definition of California, Illinois and Pennsylvania "consumer," except five, Florida, limit coverage to primary use of the Mississippi, Missouri, New York and vehicle for personal, family or West Virginia, use "primarily" (instead household purposes. Minnesota

46 Loyola Consumer Law Review Volume 11, number 1 of "normally"), and three, Alabama, degree, clarify coverage. Louisiana's South Dakota and Virginia, use definition of "motor vehicle" excludes "substantially." The conflicting clauses "vehicles used exclusively for in these sixteen states force the commercial purposes," which can be question: Does use of a vehicle inferred to cover a broad array of primarily, or even exclusively, for vehicles (other than those restricted by business purposes negate lemon law weight) primarily designed or used for coverage when the manufacturer's business purposes. New Mexico's warranty permits such use? Although definition of "motor vehicle" includes major manufacturer warranties deny passenger motor vehicles "normally coverage when damage to the vehicle used for personal, family or household is a result of misuse or improper purposes." This definition is consistent operation of the vehicle, none void the with the definition of "consumer warranty for business or commercial product" under the Magnuson/Moss use of the vehicle.41 Warranty Act and suggests that once it Three of these states, Florida, is established that the vehicle is the Mississippi and Virginia, recognize in type normally used for this kind of their legislative intent, the hardship a purpose, the business nature of its use defective vehicle imposes on the is moot.44 Missouri's definition of consumer. Arguably, such hardship is "motor vehicle" excludes "vehicles greater on the newspaper carrier, used as a commercial motor vehicle." florist, realtor, carpet cleaner or yard Construed as a restriction on the type person than on most other consumers. of vehicle covered, rather than its use, In Florida, a 1987 ruling by a state lends support that business use of a appellate court upheld coverage for a noncommercial-type vehicle is covered. vehicle registered in a business name, Business use or business ownership since the entity was "a person entitled of vehicles is sanctioned in eight other by the terms of the warranty to enforce state lemon laws with varying its obligations."42 The Florida New restrictions. Hawaii explicitly covers Motor Vehicle Arbitration Board, since business use, provided the vehicle is its inception in 1989, consistently has also used for personal use, and restricts found primary or exclusive use of coverage for business entities to one vehicles for business purposes to be vehicle acquisition per year. Maine, covered in more than twenty rulings.43 Tennessee and Vermont cover any Other states appear to provide business or commercial enterprise coverage for business use for most which registers no more than two vehicles, by describing the type of vehicles. Michigan covers vehicles vehicles that qualify under the acquired by a business, provided the definition of "motor vehicle." business purchases fewer than ten Louisiana, Missouri and New Mexico vehicles per year. In Georgia, a have other language in their definitions business that acquires a vehicle is of "motor vehicle" that, to some covered, provided it possesses no more

1998 Loyola Consumer Law Review * 47 than three new vehicles, has ten or Lemon law coverage is contingent fewer employees and has a net annual upon a defect being first reported to income of no more than $100,000. the manufacturer or dealer within a Maryland excludes fleet purchases of prescribed period (several states define five or more vehicles. Washington this period as the "lemon law rights" excludes fleet purchases of ten or more period). In most instances, the vehicles. These provisions imply "reporting" occurs when the vehicle is coverage for all other vehicles (within brought to the dealership for repair. In weight or class limits) acquired by 10 states, the defect must be reported businesses or used for business within the earlier of the first year or purposes. 12,000 miles of operation of the vehicle. 46 New Jersey excludes from its In 16 states, the defect reporting period definition of "motor vehicle" is limited to the first year or term of the commercial vehicles or trucks manufacturer's express warranty, primarily used or designed to whichever occurs first.47 Pennsylvania transport property. Alaska includes uses the earlier of the first year, 12,000 motor vehicles "normally used for miles, or the manufacturer's express personal, family or household warranty term. Wyoming covers purposes" in its definition of "motor defects reported within the first year. vehicle." This excludes vehicles The District of Columbia and the manufactured for commercial purposes. remaining twenty-two states have On the other hand, primary or exclusive longer coverage periods. use for business purposes of a vehicle Massachusetts and Rhode Island designed for personal needs is likely provide coverage during the earlier of covered. Ohio covers "passenger the first year or 15,000 miles of vehicles designed to carry not more operation of the vehicle. Maryland than nine persons" or "noncommercial affords coverage to the earlier of fifteen vehicles used exclusively for purposes months or 15,000 miles. Ohio other than engaging in business for recognizes the first year or 18,000 profit. ' 45 These provisions exclude miles, whichever occurs first. Indiana most commercial vehicles, but it is provides a coverage period of the unclear whether passenger vehicles earlier of eighteen months or 18,000 primarily used for business purposes, miles. or noncommercial vehicles used for Florida uses eighteen months or business purposes, as opposed to those 24,000 miles, whichever occurs first, designed and used to generate a profit, while Virginia is simply eighteen are covered. months.4 Connecticut, Montana, New Jersey, New York and the District of SECTION III Columbia provide coverage for the earlier of two years or 18,000 miles. In Defect Reporting Period Maine, the coverage period is two

48o Loyola Consumer Law Review Volume 11, number I years, 18,000 miles, or the term of the 100,000 miles.49 manufacturer's express warranty, Application of the current whichever occurs first. manufacturers' express warranty terms In Arizona, Hawaii, Iowa and as the exclusive coverage period Washington, reported defects are affords broader protection for most covered for two years, 24,000 miles, or consumers. However, most of the the term of the manufacturer's express warranties refer to mileage on the warranty, whichever occurs first. In odometer, whereas most states that Minnesota, the period is the earlier of have a mileage cap apply it to mileage two years or the manufacturer's attributable to the consumer's express warranty term. In North operation of the vehicle. Some Carolina and West Virginia, consumers manufacturer warranties still limit are covered if they report the defect repair of certain components such as within the first year or the term of the brake rotors and clutch disks or manufacturer's express warranty, adjustments such as wheel alignment whichever occurs later. In Arkansas, it is to one year or 12,000 miles.5 0 Many the first two years or 24,000 miles, recreational vehicle warranties are whichever occurs later. limited to one year or 15,000 miles, New Hampshire and Vermont tie whichever occurs first.5' Finally, as the coverage period to the term of the recent as 1988, most manufacturer manufacturer's express warranty. For warranties covered basic components most motor vehicles, this is the earlier for only the first year or 12,000 miles.52 of three years or 36,000 miles. Over the past 30 years, automobile However, consumers who acquire warranties have vacillated between luxury vehicles such as those made by short and long coverage periods. 3 The Acura, BMW, Cadillac, Jaguar, Lexus, current trend of warranties of long Lincoln, Mercedes-Benz, Saab and duration has been good for consumers Volvo get basic coverage warranty who acquire automobiles, particularly terms of four years or 50,000 miles, those covered by the New Hampshire whichever occurs first, or longer and Vermont lemon laws. 54 (Infiniti's is four years/60,000 miles). Several manufacturers provide even Multiple Repairs of the Same longer warranties for drive train Defect components such as the engine, transmission, differential and drive State lemon laws afford the shaft. For example, Hyundai, Isuzu, manufacturer and its authorized dealer Kia, Mitsubishi, Nissan, Subaru and multiple opportunities to cure the same Toyota cover these components for the defect or condition. The District of earlier of five years/60,000 miles, Columbia and thirty-nine states allow Infiniti and Lexus for six years/70,000 four opportunities to cure the same miles and Volkswagen for ten years/ substantial defect or condition. Some

1998 Loyola Consumer Law Review * 49 states (discussed below) allow fewer repairs, while in Tennessee, the period attempts to repair serious safety is ten days from receipt of notice. In defects. Missouri, manufacturers have ten days Ten states that afford four following written notification and opportunities for repair follow a "three delivery of the vehicle. However, these plus one" approach. That is, the same states do not require such notice to be substantial defect may be repaired at made after the third attempt. Most of least three times, and then the the other states that allow the manufacturer must be afforded a final manufacturer four repair attempts repair opportunity following receipt of require the consumer to give written written notice from the consumer. In notice, but do not specify when the Arkansas, Florida and Iowa, the notice must occur or the time period manufacturer has ten days from the within which such repairs must be date the vehicle is delivered for the performed. final repair to cure the defect. In Nine states' lemon laws permit only Alabama and Georgia that period is three attempts to repair the same fourteen days, and in Michigan, five defect.56 Three states, Maine, New business days. In Massachusetts, the Jersey and South Carolina, have a "two manufacturer has seven days to cure plus one" provision. In Maine, the the defect from the date it became manufacturer has seven business days aware of three prior attempts. In to cure the defect, following receipt of Alaska, the manufacturer has thirty written notice, while in New Jersey days from the date it receives written that period is ten calendar days. In notice from the consumer to perform South Carolina, the manufacturer has the final attempt. In New Hampshire ten business days to cure the defect and Vermont, the manufacturer gets a after the vehicle is delivered for the final repair attempt between the time final repair. Ohio and Pennsylvania the consumer files for arbitration and also provide for three repair attempts, the time the hearing must be held, but do not require written notice to the which is within forty days in New manufacturer. Hawaii, Mississippi and Hampshire and within forty-five days West Virginia specify three attempts, in Vermont. However, if the consumer provided the consumer has given prior is not satisfied with the corrective written notice of the defect to afford work, the case goes forward to the manufacturer an opportunity to arbitration. New York's "three plus repair. Mississippi provides ten working one" provision only applies to days to cure the defect, commencing on recreational vehicles; automobile the day of delivery of the vehicle for manufacturers have four attempts to repair. In Virginia, if the manufacturer repair. In North Carolina, the has received actual notice of the defect manufacturer, has fifteen days from through a letter, response to a complaint, receipt of written notice to perform inspection of the vehicle or meeting

50. Loyola Consumer Law Review Volume 11, number 1 with the consumer or dealer, three reduce the ability to control the vehicle repair attempts suffices. However, if or create a risk of fire, explosion or none of these conditions has been met, other life-threatening malfunction. the consumer, after three repair Texas uses the term serious safety attempts, must then notify the dealer hazard. Georgia refers to a life- or manufacturer in writing, and the threatening malfunction or manufacturer has an additional nonconformity, and has a fewer repair opportunity to repair the vehicle threshold if the defect is in the braking within fifteen days. or steering system. Maryland limits Two states have "four plus one" safety defects to a failure in the braking provisions which allow the or steering system. In Minnesota, manufacturer or its authorized dealer similarly, a serious safety defect is five opportunities to cure the same defined as a complete failure in the defect.5 7 In Rhode Island, the braking or steering system likely to manufacturer has seven days to cure cause death or serious bodily injury. the defect from the date it became Some states permit a manufacturer aware of four prior repair attempts. In only one opportunity to repair safety- South Dakota, the consumer must give related defects. In the District of written notice after at least four repair Columbia, Minnesota and Ohio, the attempts. The manufacturer then has manufacturer or its authorized dealer fourteen days from the date the vehicle gets one repair attempt for serious is delivered for repair to cure the safety defects. In Hawaii, Maryland, defect. Virginia and West Virginia, the manufacturer gets one repair attempt Safety-Related Defects as long as the consumer gave prior notice of the defect. Hawaii and West A manufacturer is afforded fewer Virginia require such notice to be in attempts to repair safety-related defects writing. under certain state lemon laws. In Other states provide for two repair twelve states, a vehicle is presumed to attempts for safety-related defects. be a "lemon," if it has a serious safety Washington allows two repair attempts defect that cannot be repaired within for serious safety defects. So does either one or two attempts. Serious Connecticut, provided that both safety defects are described differently attempts occur within the first year. by the states, however, Arkansas, Other states employ a "one plus one" Connecticut, Hawaii, Iowa, Ohio and approach. Arkansas, Iowa and Texas West Virginia classify serious safety require at least one repair attempt, defects as those likely to cause death or written notice to the manufacturer, and serious bodily injury if the vehicle is then a final opportunity to repair. driven. The District of Columbia, Georgia has the same provision for Virginia and Washington describe braking or steering defects, but serious safety defects as those that

1998 Loyola Consumer Law Review e 51 requires two repairs followed by notice Arkansas excludes legal holidays and a final repair for all other serious under its "days" standard. Many states safety defects. merely limit the days to business days.60 Consequently, weekend and Days Out-of-Service holiday vehicle down time may not count. Indiana also requires that a All fifty-one lemon laws have a nonconformity must still exist after days-out-of-service provision to the "days" threshold has been met. In address excessive vehicle downtime at Idaho, days are not considered out of the dealership for repairs to one or service if the consumer is provided a more defects. A majority of these states loaner vehicle. In New Hampshire, if require the vehicle to be out of service the consumer has the vehicle for a by reason of repair for a cumulative major part of the day, that day is not total of thirty calendar days.58 Some of considered as a day out of service. these states, however, have different Other states have cumulative day criteria to qualify for relief. Of these totals of more than thirty days. states, Kentucky has the highest Nebraska requires that the vehicle be threshold, applying the thirty days to out of service by reason of repair for a the same defect. Georgia requires that cumulative total of forty days. fifteen of the days accrue within the Oklahoma requires forty-five days. first year or 12,000 miles, whichever Delaware requires more than thirty occurs first. In Washington, fifteen of days out of service, commencing on the the days must accrue within the term day the consumer brings the vehicle in of the manufacturer's express for repair. Montana requires thirty warranty. In Texas, there must be at business days out of service with the least two repair attempts within the period to commence after the consumer first year or 12,000 miles, whichever has notified the manufacturer or dealer occurs first, and after thirty days, a (presumably the first time the nonconformity must still exist. In consumer brings the vehicle in for Michigan, the "days" standard does repair). not require an existing defect, but one A few states, however, require that provision to obtain relief is that a the vehicle be out of service for fewer defect or condition continues to exist. than thirty days. New Jersey requires Some states measure "days" the vehicle to be out of service by differently. For instance, in Florida, the reason of repair for a cumulative total days out of service commence on the of twenty days, and that a day the vehicle is brought in for repair nonconformity still exists. New Jersey and end on the day the consumer is then requires the consumer to give notified that the repairs have been notice after the days requisite has been completed,59 while in Vermont, a day met, affording an opportunity for final does not qualify if the consumer has repair. In North Carolina, a consumer the vehicle for a major part of the day. is potentially eligible for relief if the

520 Loyola Consumer Law Review Volume 11, number I vehicle has been out of service twenty period commences after the consumer or more business days during any files for manufacturer-sponsored or twelve-month period. Maine, state-run arbitration. However, if the Massachusetts and Mississippi use consumer is not satisfied with the fifteen business days as their corrective work, the case goes forward reasonable number threshold. to arbitration within the time period The vast majority of state lemon when a hearing must be held. laws do not require that a nonconformity Some states require that the exist after the last day out of service.6' consumer give the manufacturer a This is because these provisions are specific period of time to correct tailored to remedy excessive time defects. Alabama, Maine, Mississippi, without the use of the vehicle, rather Missouri, North Carolina, South than failed attempts to cure defects. Carolina, South Dakota, Tennessee and However, Alaska, Georgia, Virginia require anywhere from ten to Massachusetts and Rhode Island have fifteen consecutive days within which notice or other requirements tied to a the manufacturer must correct defects final opportunity to repair (ranging reported in writing. If notice is given in from seven business days to thirty advance of the cumulative "days" days) that must be given after the threshold, consumers can avoid or vehicle has been out of service the reduce the delay resulting from the requisite number of days. This implies subsequent repair. However, if there must be an existing consumers wait too long to give notice, nonconformity in need of correction. such that the final repair corrects these The incongruous language also has the defects after the "days" threshold has effect of adding days (out of service) been met, consumers may be ineligible spent on the final repair. If defects are for relief, at least according to a recent cured on this final opportunity, it is state-run arbitration decision in unclear whether the consumer can still Maine. 64 In Iowa, consumers must apply the days-out-of-service accrue twenty days before they give provision, or how new problems are notice, and allow ten cumulative days treated. In Georgia, a consumer is thereafter for repairs to conform the ineligible for state-run arbitration, vehicle to the warranty. In Michigan, it unless a nonconformity still exists. 62 In is twenty-five days, then notice, and Massachusetts, on the other hand, then five business days to repair the consumers are eligible for state-run defect or condition. In New York, arbitration by showing the consumers with recreational vehicles manufacturer had a final opportunity give written notice after three repair to cure the nonconformity(s).63 New attempts for the same defect or twenty- Hampshire and Vermont also have a one days out of service, whichever final repair opportunity after the occurs first. If they do not notify the "days" threshold has been met. That manufacturer, subsequent days may

1998 Loyola Consumer Law Review * 53 not be taken into account. Because of Reasonable Number of Attempts these notice and repair time-frames, it Coverage Period is likely that consumers in these states will experience more than thirty days In most states, a vehicle is "presumed" to out of service before they can invoke be a "lemon" if it their rights.65 In Florida, consumers cannot be repaired within a reasonable must give notice after fifteen or more number of attempts within a certain 68 days out of service, and then afford the coverage period . The burden of proof manufacturer or dealer at least one is then shifted to the manufacturer to opportunity to inspect or repair the show that, under the circumstances, vehicle. If notice is given after thirty that number was not reasonable. In days accrue, the consumer is only twenty-seven states and the District of obligated to give the manufacturer or Columbia, the period in which a defect dealer that one opportunity to inspect must be reported (usually the first or repair. Arkansas limits its notice and repair visit) coincides with the period final repair requirement to attempts for within which the presumption that a the same defect, not days out of reasonable number of attempts must 69 service. 66 occur. Two other states have incongruous language concerning their Multiple Defects time periods. Vermont requires the first repair for a defect to occur within the Consumers who experience express warranty term; however, it multiple defects with their vehicles limits the consumer's right to requiring several trips to the dealership arbitration if the final repair proves often believe their dispute is eligible unsatisfactory for the duration of the for lemon law relief; however, many express warranty. West Virginia fail to meet either the "attempts" or the requires the consumer to report the "days" thresholds.67 Three states defect within the first year or term of recognize the frequency and potential the manufacturer's express warranty, hardship of this situation, and provide whichever occurs later, but limits a a unique standard to cover multiple reasonable number of attempts to defects. Kansas gives the manufacturer repair that defect to the first year or and its authorized dealers ten attempts term of the manufacturer's express to repair substantial defects. Ohio warranty, whichever occurs earlier. limits the number of repair attempts to Consequently, consumers who first eight. Arkansas provides for five repair experience defects after the first year of attempts, provided they occur on operation of the vehicle, may not be separate occasions. eligible for lemon law relief. Iowa and Washington have defect reporting periods similar to the period within which a reasonable number of attempts must occur, which is the first

54. Loyola Consumer Law Review Volume 11, number 1 two years or 24,000 miles, whichever However, the consumer has two years occurs first. However, the defect to bring an action from the time the reporting period also contains the term defect is first reported. Consequently, it of the manufacturer'sexpress warranty. is likely that repair attempts That provision does not affect undertaken during the additional two- consumers who experience problems year period can be considered. covered by the current basic warranties Of the other seventeen states, nine of automobile manufacturers. extend the defect reporting period to However, some Washington consumers cover subsequent repair efforts under who acquire recreational vehicles (not certain circumstances. Florida, covered in Iowa) will be impacted if Michigan, Mississippi, Missouri, Oregon their chassis warranties only cover the and Virginia provide the extension first year of use, and a defect first when the defect has been reported, but occurs within the second year. not cured by the expiration of the In Pennsylvania, the consumer must coverage period. In Florida, that period first report the defect within the first may be extended for six more months, year, 12,000 miles, or term of the giving consumers as much as twenty- manufacturer's warranty, whichever four months, depending on mileage occurs first. However, there is no accrued, to meet the presumption.y In specified time period within which a Michigan, repairs for existing defects reasonable number of attempts must can be applied to meet the presumption occur. Pennsylvania's presumption if they are made within the term of the provision, however, does reference a manufacturer's express warranty, or reasonable number of attempts to even after, if that period expires before repair or correct a nonconformity. A the repairs are performed. Mississippi, nonconformity is defined as "a defect Missouri, Oregon and Virginia do not or condition which substantially provide a specific time-frame for the impairs the use, value or safety of a extension, but instead have time limits new motor vehicle and does not from the date of delivery of the conform to the manufacturer's express vehicle when a lawsuit must be filed. warranty." Consequently, the This, in effect, caps the period to presumption likely can be applied to meet the presumption. In Mississippi cover repair efforts for the duration of and Missouri, that period is eighteen that warranty term. months.7' In Virginia, it is at least In Indiana, the consumer must first eighteen months, 2 and in Oregon, it is report the defect within the first as much as twenty-four months, eighteen months or 18,000 miles, depending upon mileage accrued. whichever occurs first. Like Alaska, Massachusetts and Rhode Pennsylvania, Indiana's law does not Island also extend the coverage period, specify a time within which a reasonable but only for purposes of the final repair number of attempts must occur. attempt. In Alaska, that period is

1998 Loyola Consumer Law Review o 55 fifteen months (three months beyond as to whether there is an extension of the one-year coverage period). time for a reasonable number of Massachusetts and Rhode Island do attempts to accrue. Consumers are not specify a time-period for the final entitled to relief if a substantial defect repair, but that repair would have to be is not repaired within a reasonable made before the deadline to file a number of attempts within the first claim. In Massachusetts, consumers year or 12,000 miles. However, the have eighteen months from the date of section that establishes a reasonable delivery to qualify for state-run number of attempts specifies that they arbitration, while in Rhode lsland, be performed within the manufacturer's consumers have as many as three express warranty term. Consequently, years, depending upon mileage to meet the presumption, consumers accrued, to bring a lawsuit. should have the earlier of the term of Eight states provide longer coverage the manufacturer's warranty, or the periods to meet the reasonable number statutory time period to commence an of attempts presumption. In Alabama, action, which is three years from the Georgia, South Carolina, South Dakota date of delivery. In Minnesota, the and Texas, the consumer must first consumer must first report the defect report the defect within the first twelve within the first two years or the term of months or 12,000 miles, whichever the manufacturer's express warranty, occurs first. Alabama and South whichever occurs first. The law affords Dakota consumers get the benefit of consumers three years from the date of the presumption of a reasonable delivery for further repairs to meet the number of attempts, if the attempts presumption of a reasonable number of occur within the first twenty-four attempts. In Wyoming, the consumer months or 24,000 miles, whichever must report the defect within the first occurs first. In Texas, consumers must year, but should get the benefit of the have at least two repair attempts presumption if a reasonable number of performed (or one attempt for a serious attempts were undertaken within one safety defect) within the first year or year or the (manufacturer's) express 12,000 miles. They get an additional warranty, whichever is later. In North year or 12,000 miles to meet the Carolina, consumers must report the presumption for repair attempts, or a defect within the first year or term of limit of two years or 24,000 miles, the manufacturer's express warranty, whichever occurs first, for days out of whichever occurs later. Consumers are service. In Georgia, consumers get an entitled to relief if a substantial defect additional two years or 24,000 miles, is not repaired within a reasonable whichever occurs first, to meet the number of attempts no later than presumption from the date of the initial twent-four months or 24,000 miles. The 73 repair attempt. statute does not specify "whichever The South Carolina law is not clear occurs first," and presumably as a

56* Loyola Consumer Law Review Volume 11, number I remedial statute, consumers should be purchased and registered in covered for the duration of either Pennsylvania. Vehicles acquired in period. another state would be covered as along as the consumer is a Pennsylvania CONCLUSION resident and the vehicle is titled for the first time in Pennsylvania. Defects Recent Proposed Changes in State would be covered provided they were Lemon Laws first reported within the earlier of the first twelve months or 12,000 miles of Florida operation. Two attempts to repair defects in the braking or steering In 1997, Florida enacted several system likely to cause death or serious amendments which affect lemon law bodily injury would constitute a coverage terms.74 The amendments reasonable number. went into effect on October 1, 1997, but Other changes would either clarify only apply to vehicles acquired on or or reduce the scope of coverage. The after that date. The amendments proposal would cover trucks up to extend the defect reporting period 10,000 lbs. gross vehicle weight rating. (lemon law rights period) from The consumer would have the earlier eighteen months or 24,000 miles, of eighteen months or 18,000 miles to whichever occurs first, to twenty-four meet the presumption that a reasonable months with no mileage limitation. number of attempts had occurred. However, the revisions eliminate the Under the current law, this coverage six-month rights extension consumers period is not specified and arguably may receive if the defect was reported runs for the term of the manufacturer's during the lemon law rights period, express warranty. The proposal adds a but not cured. The changes also allow notification requirement after the third recreational vehicle manufacturers a repair attempt, creating a "three plus cumulative total of sixty, instead of one" standard. Under the existing law, thirty, days out of service by reason of three repair attempts is presumed to be repair before the vehicle is presumed to a reasonable number. The legislation be a "lemon." has passed the Senate, and is pending Pennsylvania in the House. It is likely that it will be further modified and acted upon in Pennsylvania has proposed 1998.76 legislation which would affect several coverage terms. 75 It would expand Vermont coverage to include leased vehicles and Proposed amendments to the the chassis portion of recreational Vermont law are primarily designed to vehicles. It would eliminate the expand coverage to include large requirement that the vehicle both be trucks.' The changes would eliminate

1998 Loyola Consumer Law Review e 57 the 10,000 lbs. gross vehicle weight 401-417 (Michie 1996); CAL. CIV. CODE §§ limit and the provision which excludes 1793.2, 1793.22 (West Supp. 1997); COLO. REV. business and commercial enterprises STAT. § 42-10-101-107 (1993); CONN. GEN. STAT. from coverage if they register or lease ANN. § 42-179-186 (West 1992); DEL. CODE ANN. tit. 6, §§ 5001-5009 (1993); D.C. CODE three or more vehicles. They would ANN. § 40-1301-1304 (1990); FLA. STAT. ch. 681 also eliminate the requirement that a §101-118 (1995); GA. CODE ANN. § 10-1-780- vehicle be registered in Vermont within 794 (1994); HAW. REV. STAT. § 4811-1-4 (1993); fifteen days of the date of purchase or IDAHO CODE § 48-901-919 (1997); 815 ILL. lease. The proposal is pending, and COMP. STAT. § 380/1-8 (West 1993 & Supp. will not be acted upon until the 1998 1997); IND. CODE ANN. § 24-5-13-1-24 (Michie legislative session. 1996); IOWA CODE ANN. § 322G.1-15 (West Supp. 1997); KAN. STAT. ANN. § 50-645 (1994 & California Supp. 1996); Ky. REV. STAT. ANN. §§ 367.840- 846 (Michie 1996); LA. REV. STAT. ANN. §§ Proposed revisions to the California 51:1941-1948 (West 1987); ME. REV. STAT. ANN. lemon law would cover consumers tit.10, §§ 1161-1169 (West 1997); MD. CODE. ANN., COM. LAW, II §§ 14-1501-1504 (1990 & who use their vehicles for business Supp. 1996); MASS. GEN. LAWS ANN. ch. 90, § purposes, provided the person or 7N 1/2 (West 1989 & Supp. 1997); MICH. entity has no more than five vehicles COMP. LAWS ANN. §§ 257.1401-1417 (West 78 registered under its name. Other 1990); MINN. STAT. ANN. § 325F.665 (West changes would increase the defect 1995); Miss. CODE ANN. § 63-17-151-165 reporting and reasonable number of (1996); Mo. ANN. STAT. §§ 407.560-579 (West attempts coverage period from the 1990); MONT. CODE ANN. §§ 61-4-501-533 (1995); NEB. REV. STAT. 60-2701-2709 (1988); earlier of twelve months or 12,000 NEV. REV. STAT. ANN. §§ 597.600-670 (Michie miles, to twenty-four months or 24,000 1994); N.H. REV. STAT. ANN. § 357-D:1-12 miles, whichever occurs first. (1995); N.J. STAT. ANN. § 56:12-29-49 (West Furthermore, two repair attempts on a Supp. 1997); N.M. STAT. ANN. § 57-16A-1-9 safety defect would be presumed to be (Michie 1995); N.Y. GEN. Bus. LAW § 198-a a reasonable number, provided the (McKinney 1988 & Supp. 1997); N.C. GEN. consumer had directly notified the STAT. § 20-351 (1993); N.D. CENT. CODE § 51- 07-16-22 (1989 & Supp. 1997); OHIO REV. CODE manufacturer of the need for the repair ANN. §§ 1345.71-77 (Anderson 1993); OKLA. of that defect. Like Vermont, the STAT. ANN. tit. 15, § 901 (West 1993); OR. REV. amendments are pending, and will not STAT. §§ 646.315-375 (1988 & Supp. 1994); PA. be acted upon until the 1998 legislative STAT. ANN. tit. 73, § 1951-1963 (West 1993); session. R.I. GEN. LAWS § 31-5.2-1-13 (1994 & Supp. 1996); S.C. CODE. ANN. § 56-28-10-110 (Law. Endnotes Co-op. 1991 & Supp. 1996); S.D. CODIFIED LAWS § 32-6D-1-11 (Michie Supp. 1997); TENN. CODE ANN. § 55-24-201-211 (1993); TEx. REV. I See ALA. CODE § 8-20A-1-6 (1993); Civ. STAT. ANN. art. 4413(36), 6.07 (West Supp. ALASKA STAT. § 45.45.300-360 (Michie 1996); 1997); UTAH CODE ANN. § 13-20-1-7 (1996); VT. ARiz. REV. STAT. ANN. § 44-1261-1266 (West STAT. ANN. tit. 9, §§ 4170-4181 (1993); VA. 1994 & Supp. 1996); ARK. CODE ANN. § 4-90- CODE ANN. § 59.1-207.9-16 (Michie 1992);

58* Loyola Consumer Law Review Volume 11, number 1 WASH. REV. CODE ANN. § 19.118.005-904 (West 8 Indiana, Kentucky, New Mexico, 1989 & Supp. 1997); W. VA. CODE § 46A-6A-1- Pennsylvania, South Carolina, Tennessee, 9 (1996); Wis. STAT. ANN. § 218.015 (West Washington, supra note 1. 1994); Wyo. STAT. ANN. § 40-17-101 (Michie 1997), [hereinafter code sections are 9 See MD. CODE ANN., COM. LAW I §§ 2- referenced by state name]. 312-315 (1997).

2 See Alabama, Arizona, California, 10 See Magnuson/Moss Warranty Act, Colorado, Connecticut, Florida, Illinois, 15 U.S.C. § 2308 (1994). Kansas, Louisiana, Maine, Massachusetts, Minnesota, Mississippi, Missouri, Montana, 11 Forty-five states use the term Nebraska, Nevada, North Carolina, North "substantially impairs." Alabama, South Dakota, Oregon, Rhode Island, South Dakota, Virginia and the District of Dakota, Utah, Virginia, West Virginia, supra Columbia use the term "significantly note 1. impairs." Mississippi and Missouri just use the word "impairs." 3 See California, Connecticut, Florida, Illinois, Louisiana, Maine, Massachusetts, 12 See Alabama, Arkansas, California, Minnesota, Mississippi, Missouri, North Connecticut, Delaware, Florida, Georgia, Carolina, North Dakota, Oregon, Rhode Hawaii, Idaho, Illinois, Indiana, Kentucky, Island and Utah, supra note 1. Maine, Massachusetts, Mississippi, Missouri, Montana, New Hampshire, New Jersey, 4 Telephone Interview with Hugh Ohio, Oregon, Pennsylvania, Rhode Island, Hegyi, Arizona Attorney General's Office South Carolina, South Dakota, Texas, Utah, (May 13, 1997); Telephone Interview with Vermont, Virginia, Washington, Wisconsin, Steve Rotello, Illinois Attorney Generals' supra note 1. Office (May 13, 1997); Telephone Interview with Palmer Hanson, South Dakota Attorney 13 See Alaska, Arizona, Colorado, General's Office (May 14, 1997); Telephone Kansas, Louisiana, Maryland, Michigan, Interview with David Irvin, Virginia Minnesota, New Mexico, Nebraska, Nevada, Attorney General's Office (May 22, 1997). North Dakota, Oklahoma, West Virginia, Wyoming, supra note 1. 5 See letter from Pat Sangillo, State of New Hampshire, Department of Safety, 14 See Arizona, Colorado, Kansas, Motor Vehicle Arbitration Board, to Maryland, Montana, Nebraska, Nevada, 'consumer" (form letter accompanying New Mexico, North Dakota, Oklahoma, arbitration application). Wyoming, supra note 1. However, in Montana, the consumer is also eligible for 6 Telephone Interview with Ted relief by showing substantial impairment of Barrows, Ohio Attorney General's Office the vehicle's use and value or safety. (May 9, 1997). 15 See Alaska, Arkansas, Colorado, 7 See Arkansas, Delaware, Georgia, Hawaii, Idaho, Illinois, Indiana, Louisiana, Hawaii, Idaho, Minnesota, New Jersey, New Maryland, Massachusetts, Minnesota, York, Texas, Vermont, Wisconsin, Wyoming, Mississippi, Missouri, Montana, New supra note 1. Hampshire, New Mexico, Nebraska, North Dakota, Oregon, Rhode Island, Texas, Utah,

1998 Loyola Consumer Law Review * 59 Vermont, Virginia, West Virginia, supra note 1997, there were 71 cases submitted by 1. recreational vehicle owners to the Florida New Motor Vehicle Arbitration Board. In 16 See MASS. REGS. CODE tit. 201, § seven cases, one manufacturer was named as 11.10(11)(a) (1993). a party; in 50 cases, two were named; in seven cases, three were named; in seven 17 See Arizona, California, Connecticut, cases, four were named; in one case, five Georgia, Kansas, Maryland, Michigan, were named; and, in one case, six were Minnesota, Mississippi, Missouri, Montana, named. The seven cases involving four Nebraska, Nevada, New Hampshire, New manufacturers were Niebruegge v. Mexico, New York, North Carolina, Ohio, Winnebago, Spartan, Cummins and Allison Oklahoma, Oregon, South Carolina, (96-0043/WPB), Bolser v. Winnebago, Vermont, Virginia, West Virginia, Wyoming, Oshkosh, Cummins and Allison (96-0200/ supra note 1. TLH), Hirsch v. Winnebago, Spartan, Cummins and Allison (96-0246/ORL), Bell v. 18 See Maryland, Minnesota, Fleetwood, Spartan, Cummins and Onan Mississippi, Missouri, Montana, Nebraska, (96-0487/ORL), Coon v. Holiday Rambler, New Hampshire, New Mexico, Oregon, Oshkosh, Cummins and Allison (96-0922/ Vermont, West Virginia, supra note 1. TLH), Smith v. Coachmen, Spartan, Cummins and Allison (97-0098/ORL), and 19 See Alabama, Alaska, Arkansas, Shelnutt v. Fleetwood, Freightliner, Allison Colorado, Delaware, Florida, Hawaii, Idaho, and Onan (97-0832/TPA). The one case Illinois, Indiana, Iowa, Kentucky, Louisiana, involving five manufacturers was B.A.P., Inc. Maine, Massachusetts, New Jersey, North v. Winnebago, Freightliner, Cummins, Dakota, Pennsylvania, Rhode Island, South Allison and Onan (96-0406/TLH). The one Dakota, Tennessee, Texas, Utah, Washington, case involving six manufacturers was Ramey Wisconsin, supra note 1. v. Holiday Rambler, Spartan, Cummins, Allison, Pacbrake and Nelson Industries (96- 20 See Alaska, Georgia, Hawaii, Iowa, 0341 /TLH). The cases are unpublished. Tennessee, Virginia, Washington, District of Columbia supra note 1. 2 See Alabama, Arizona, Arkansas, Florida, Georgia, Hawaii, Idaho, Illinois, 21 See Alaska, Illinois, Maine, Oregon, Indiana, Iowa, Kansas, Louisiana, Maine, Texas, Wisconsin, supra note 1; MINN. STAT. Maryland, Montana, New Hampshire, New ANN. § 168.011(25)(3)(b) (West Supp. 1997). Mexico, North Carolina, North Dakota, Oklahoma, Rhode Island, South Dakota, 2 See Arkansas, Delaware, Florida, Tennessee, Utah, Vermont, Washington, Missouri, Montana, New Jersey, Ohio, Wyoming, supra note 1; CONN. GEN. STAT. Oklahoma, South Carolina, Vermont, supra ANN. § 14-1 (11) (West Supp. 1997); OHIo REV. note 1. CODE ANN. § 4501.01(H) (Anderson 1997); S.C. CODE ANN. § 56-3-630 (Law. Co-op. 23 See Arizona, California, Georgia, Supp. 1996); W. VA. CODE § 17A-10-1 (1996). Kansas, Mississippi, New York, Utah, Virginia, Washington, West Virginia, supra 2 Telephone Interview with Cathy note 1. Skaar of the Wisconsin Department of Transporation (June 4, 1997). 24 From January 1996 through August

60* Loyola Consumer Law Review Volume 11, number 1 27 See U.S. Medium/Heavy Duty Truck Sales, April & YTD, AUTOMOTIVE NEWS, May 36 See Pertuset v. Ford Motor Company, 26, 1997, at 22. 645 N.E.2d 1329, (Ohio Ct. App. 1994).

2 See 1996-Model Light-Truck 37 See Alabama, California, Florida, Specifications, AUTOMOTIVE NEWS, Oct. 9, 1995, Georgia, Hawaii, Idaho, Iowa, Illinois, at 8i-9i. Michigan, Mississippi, Missouri, Nebraska, North Carolina, Pennsylvania, South 29 See FLA. STAT. ch. 320.01(12)(b) (1995). Carolina, South Dakota, Texas, Virginia, Washington, Wisconsin, supra note 1. 30 In addition to Nebraska, the other seven states are Delaware, Mississippi, 3$ See Arizona, Connecticut, Delaware, Nevada, New York, Oregon, Texas and Hawaii, Idaho, Indiana, Maine, Maryland, Wisconsin. Massachusetts, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Ohio, 31 R. L. POLK, New Vehicle Registration Oklahoma, Tennessee, Texas, Utah, Vermont, Service, Trucks by GVW (1995). Washington, Wyoming, supra note 1.

32 See Alabama, Arizona, Kansas, 39 See Alaska, Colorado, Florida, Maine, Massachusetts, Nebraska, Nevada, Louisiana, Minnesota, Mississippi, Missouri, New Hampshire, New Jersey, New Mexico, Nebraska, North Dakota, Oregon, North Carolina, North Dakota, Ohio, Pennsylvania, Rhode Island, Virginia, West Oklahoma, South Dakota, Texas, Virginia, Virginia, Wisconsin, supra note 1. Washington, Wisconsin, Wyoming, supra note 1. 40 See Arkansas Office of the Attorney General, A Consumer's Guide to the Arkansas 33 See Arkansas, California, Lemon Law, at 4. That publication indicates Connecticut, Delaware, Florida, Georgia, that, if within the first two years after the Hawaii, Illinois, Indiana, Iowa, Kansas, original delivery date of the vehicle or for Louisiana, Maine, Maryland, Massachusetts, the first 24,000 miles, whichever occurs last, Minnesota, Mississippi, Missouri, New the vehicle is transferred to someone else, Hampshire, New Jersey, New York, North that owner or person leasing the vehicle is also Carolina, North Dakota, Oregon, Rhode covered under the Lemon Law. See id. Island, South Carolina, Tennessee, Texas, Utah, Vermont, Washington, Wisconsin, 41 See 1997 Audi Warranty USA; 1996 supra note 1. BMW Service Warranty Information; 1997 Cadillac Warranty, Creating a Higher 34 See Arkansas, California, Florida, Standard; 1996 Dodge Dakota Warranty Hawaii, Illinois, Indiana, Iowa, Maryland, Information; 1997 GMC Light Duty Truck, Massachusetts, Minnesota, New Hampshire, Warranty and Owner Assistance New Jersey, Rhode Island, Vermont, supra Information; 1996-Model Warranty note 1. Information Booklet, Ford & Mercury Cars & Light Trucks; 1997 Lexus Owner's Manual 35 See Alabama, Arizona, Colorado, Supplement, Warranty, Maintenance, and Nebraska, New Mexico, Ohio, Oklahoma, General Information; 1997 Mazda Warranty South Dakota, Virginia, West Virginia and Information; 1997 Mercedes-Benz Owner's Wyoming, supra note 1. Service and Warranty Information; 1996 Saab

1998 Loyola Consumer Law Review e 61 Warranties & Service Record Booklet; 1996 North Dakota, Oklahoma, Tennessee, Utah, Saturn Warranty & Owner Assistance Wisconsin, supra note 1. Information; 1997 Volkswagen Warranty USA. 48 Effective October 1, 1997, Florida's "lemon law rights period" was extended to 42 See Results Real Estate, Inc. v. Lazy 24 months from the date of original delivery Days R.V. Center, Inc., 505 So. 2d 587 (Fla. of the vehicle to the consumer, with no Dist. Ct. App. 1987). mileage limitation.

43 See DeBenedictis v. Chrysler (89- 49 See Few Makers Change Warranties, 0071 /ORL); Perry v. GM-Chevrolet (89- AUTOMOTIVE NEWS, Nov. 3, 1997, at 24. 0089/WPB); Ford v. Chrysler (90-0029/TPA); Gill v. Chrysler/Utilimaster (90-0155/FTM); 50 See 1996 Dodge Neon Warranty; the Retherford v. GM-GMC (90-0263/ORL); 1997 Mazda Warranty; 1996 Saab Warranty Knapp v. Alfa Romeo (90-0701 /STP); Land v. (which covers components such as wiper Chrysler (91-0335/TLH); Aronoff v. Toyota blades and drive belts for one year or 16,000 (91-0498/WPB); Osborne v. Ford (91-0529/ miles, whichever occurs first). ORL); Foster v. Mercedes-Benz (92-0808/ FTL); Byer v. Mercedes-Benz (93-0283/MIA); 51 See 1997 Airstream Warranty; 1997 Bloom/Florida Water Treatment, Inc. v. Georgie Boy Warranty; 1997 Winnebago Mercedes-Benz (93-0715/TPA); Grundman v. Warranty. GM-GMC (94-0029/FTL); Wehnes v. Mercedes-Benz (94-0154/JAX); Value 52 See Japan Ups Warranties, AUTOMOTIVE Camera & Electronics v. GM-Pontiac (95- NEws, Dec. 19, 1988, at 18. 0339/MIA); Pressler & Associates, Inc. v. Ford (95-0569/TPA); Vorraso v. Ford (95- 53 FEDERAL TRADE COMMISSION, Staff 0691/WPB); Temp Tech A/C Corp. v. Ford Report on Automobile Warranties (Nov. 18, (95-0733/ORL); Grand v. Mercedes-Benz (95- 1968) at 84. 0919/ORL); Grochowski/Widdis v. Nissan (95-0932/ORL); McNeil v. Mercedes-Benz 54 In North Carolina and West Virginia, (95-1032/JAX); H & G Cable Construction a reasonable number of attempts must occur Company, Inc. v. Ford (95-1168/FTM); in a period less than the term of the current Cordell v. National RV/Ford (96-0664/TLH). manufacturer warranties. Consequently, the The cases are unpublished. longer manufacturer warranties are of limited benefit to consumers in these two 44 See 15 U.S.C. § 2301(1) (1994). states.

45 See Ohio Rev. Code Ann. § 4501.01(E) 55 Two of these states, North Dakota (Anderson 1997). and Wyoming, use the phrase, "subject to repair more than three times." 46 See Alabama, California, Georgia, Idaho, Illinois, Kentucky, Oregon, South See Hawaii, Maine, Mississippi, New Carolina, South Dakota, Texas, supra note 1. Jersey, Ohio, Pennsylvania, South Carolina, Virginia, West Virginia, supra note 1. 47 See Alaska, Colorado, Delaware, Kansas, Louisiana, Michigan, Mississippi, 57 See Rhode Island, South Dakota, Missouri, Nebraska, Nevada, New Mexico, supra note 1.

620 Loyola Consumer Law Review Volume 11, number 1 thereafter, or a total of 55.2 days. For 52 cases 58 See Alabama, Arizona, Arkansas, qualifying under the "days" standard California, Connecticut, District of submitted for arbitration from January Columbia, Florida, Georgia, Iowa, Kansas, through June 1992, the vehicle was out of Kentucky, Louisiana, Maryland, Michigan service an average of 44 days when the Minnesota, Nevada, New York, Ohio, manufacturer was notified, and an average Pennsylvania, Rhode Island, South Carolina, of 20.8 days thereafter, or a total of 64.8 days. South Dakota, Tennessee, Texas, Vermont, Virginia, Washington, West Virginia, 6 Compare ARKANSAS OFFICE OF THE Wisconsin, supra note 1. ATTORNEY GENERAL, A Consumer's Guide to the Arkansas Lemon Law, at 7. That 59 See FLA. ADMIN. CODE ANN. r. 2-30.001 publication directs the consumer to give (1997). written notice to the manufacturer for a final chance to repair the defect after the third 60 See Alaska, Colorado, Hawaii, Idaho, unsuccessful repair attempt or after the 30 Illinois, Indiana, Missouri, New Hampshire, cumulative calendarday period. New Mexico, North Dakota, Oregon, Utah, Wyoming, supra note 1. 67 See STATE OF NEW YORK ATTORNEY GENERAL New Car Arbitration Program Annual 61 The only exceptions are Indiana, Reports (1987-90). The consumers' failure to New Jersey, Texas, and possibly Michigan. provide evidence of at least four repair attempts for the same problem was the 62 See GA. COMP. R. & REGS. r. 122- leading reason out of ten categories why the 14-.03(f) (1991). claims were rejected for arbitration. See STATE OF FLORIDA ATTORNEY GENERAL Lemon Law 63 See MASS REGS. CODE tit. 201, § Arbitration Program Annual Reports (1989-92). 11.02(2)(e) (1993). The consumers' failure to show evidence of at least four repair attempts for the same 64 State of Maine, Lemon Law problem was either the first or second most Arbitration Program, Masek v. Ford, Case # prevalent reason (out of as many as 18 96-96 (Apr. 14, 1997). categories) why the claims were rejected.

65 See State of FLORIDA ATTORNEY M In 46 states and the District of GENERAL Lemon Law Arbitration Program Columbia. Indiana uses the word, Annual Reports (1990-92). Prior to July 1, "considered," instead of "presumed" (to be a 1992, Florida had the same "days" provision reasonable number). However, in as Iowa (discussed above). For 103 cases Massachusetts, Washington and Wisconsin, qualifying under the "days" standard the vehicle is "deemed" to be a "lemon" submitted for arbitration in 1990, the vehicle upon proof by the consumer that the was out of service an average of 34.9 days manufacturer was given a reasonable when the manufacturer was notified, and an number of attempts within the coverage average of 22.8 days thereafter, or a total of period. 57.7 days. For 119 cases qualifying under the "days" standard submitted for arbitration in 69 See Arizona, Arkansas, California, 1991, the vehicle was out of service an Colorado, Connecticut, Delaware, Hawaii, average of 34.6 days when the manufacturer Idaho, Illinois, Kansas, Kentucky, Louisiana, was notified, and an average of 20.6 days Maine, Maryland, Montana, Nebraska,

1998 Loyola Consumer Law Review * 63 Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, 73 See GA. COMP. R. & REGS. r. 122-9- Oklahoma, Tennessee, Utah, Wisconsin, 01(q)(2 ) (1990). supra note 1. 74 See 1997 FLA. LAWS ch. 245. 70 If, prior to the first 18 months of operation of the vehicle, the consumer 75 See S. 763, Pa. General Assembly (Pa. accrues 24,000 miles, then the lemon law 1997). The proposed law would also create rights extension would run six months from an independent arbitration process, that date. administered by the Pennsylvania Attorney General's Office. 71 In both of these states, the consumer also can file within 90 days following the 76 Telephone Interview with John Kelly, final action of a panel of a manufacturer's Pennsylvania Attorney General's Office informal dispute settlement procedure that (Aug. 8, 1997). complies in all respects with 16 C.F.R. Part 703. 77 See S. 4, Vt. General Assembly (Vt. 1997). 72 The consumer also has 12 months to file a claim from the final action taken by the 78 See S. 289, Cal. General Assembly manufacturer in its dispute settlement (Cal. 1997). procedure, if that period is longer than the lemon law rights period (which is 18 months).

64e Loyola Consumer Law Review Volume 11, number 1