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When life gives you lemons…

For many, the thought of buying a new car evokes a compulsory flood of emotion.  Those emotions likely differ for each reader, but for most, they will include a healthy mix of excitement, pride, fear and anxiety.  Since we here at Setliff Law prefer to focus on the positive, we assume that when you close your eyes and imagine yourself sitting in your choice of new car or truck (without consideration of financial constraint, of course) your sensory perception is that of a new car smell.  Perhaps when you close your eyes, you see a grand view of an LCD dash, wrapped in leather.  You hear the sound of a twin-turbo V-8 burbling from a quad exhaust or the purr of an electric motor.  You can feel a warm breeze whispering through the cabin as the late afternoon sun peeks in through an open sunroof on a summer day.  Everything is immaculate and clean.  

What a wonderful turn of events, having parted with a decent portion of your hard-earned cash and received in return the car of your dreams.  Then… kurchunk!  You heard and read that right.  Kurchunk.  What was that?  Why does my newly acquired whip suddenly sound like someone poured pea gravel into the garbage disposal in my kitchen sink?  We here at Setliff Law also appreciate the feeling of fear and anxiety.  

Luckily, in Virginia, our General Assembly recognizes that a motor vehicle is a major consumer purchase, and there is no doubt that a defective motor vehicle creates a hardship for the consumer.  Therefore, our legislature insists that good faith motor vehicle warranty complaints be resolved by the manufacturer, or its agent, within a specified period of time.  The Virginia Motor Vehicle Warranty Enforcement Act, or more commonly, the Virginia “Lemon Law” outlines procedures whereby a consumer may receive a replacement motor vehicle, or a full refund, for a motor vehicle which cannot be brought into conformity with the express warranty issued by the manufacturer.  

While the purpose of the Lemon Law is to protect buyers from being stuck with a “lemon” vehicle, there are certain limitations to the law and not all vehicles are covered.  The Virginia Lemon Law applies to all new vehicles, but only some used vehicles.  With regard to a pre-owned vehicles, they are covered only if the original manufacturer’s warranty has not been in effect for longer than 18 months and the warranty has not expired.  Consequently, if the first owner of a vehicle purchased it more than eighteen (18) months ago, then it does not fall under the purview of the Lemon Law.  The good news:  Even if you are not the first owner, if the vehicle was purchased by the first owner less than eighteen (18) months ago, it may still qualify as a lemon.

The Virginia Lemon Law provides that, if a new motor vehicle does not conform to all warranties, and the consumer reports the nonconformity to the manufacturer or its agents, including an authorized dealer, during the manufacturer’s warranty period, the manufacturer (or its agents) shall make such repairs as are necessary to conform the vehicle to the warranties.  This holds true even if such repairs are made after the expiration of such manufacturer’s warranty period.

So, what is a “nonconformity”?  Well, the Lemon Law defines a “nonconformity” as a failure to conform with a warranty, a defect or a condition, including those that do not affect the driveability of the vehicle, which significantly impairs the use, market value, or safety of a motor vehicle.  However, if the alleged defect becomes subject of litigation, whether a particular defect constitutes a nonconformity will likely be a matter of fact to be established by judge or jury.  

What does this mean for you, the consumer?  Automotive consumers are entitled to the benefit of manufacturer guarantees which extend past the drivetrain.  Prospectively, flaws in vehicle performance, safety features and even cosmetic issues, such as bubbling paint, may be covered.  If any of these issues either cannot or will not be repaired by the manufacturer within a reasonable period, you may be entitled to a refund or a similar vehicle.

What is a “reasonable period,” you ask?  Here again, the Lemon Law provides the consumer with useful guidelines.  Specifically, the law presumes that a reasonable number of attempts have been undertaken if, within eighteen (18) months following the date of original delivery of the motor vehicle: (a) the same “nonconformity” has been subject to repair three (3) or more times by the manufacturer, its agents or its authorized dealers and continues to exist; (b) the “nonconformity” is a serious safety defect and has been subject to one (1) a repair and the same nonconformity continues to exist; or (c) the vehicle is out of service due to repair for a cumulative total of thirty (30) calendar days.

Consumers should also be aware that, if a manufacturer provides an alternative dispute resolution/settlement procedure (ADR), it is the consumer’s choice whether or not to use it prior to availing himself of his or her rights under the Lemon Law.  In addition, if a buyer and seller agree to utilize ADR and a decision is rendered in favor of the consumer, the manufacturer shall have 40 days to comply with the terms of the decision.  Moreover, if a manufacturer fails to comply with the ARD decision and litigation is required to enforce it, a reviewing court may triple (3X) the value of the award stipulated in the decision.  Further still, the Lemon Law provides that successful litigants are entitled to an award of reasonable attorney’s fees.  

All told, Virginia’s Lemon Law affords local consumers with considerable protection from lemon vehicles.  Although some manufacturers will stand behind a defective product, working with the consumer to make them happy (and save face), others may attempt to sell the same lemon more than once, assuring customer that the lemon has been adequately repaired.  While reselling a lemon is not, in and of itself against the law, the Lemon Law provides that if a returned vehicle is made available for resale, the manufacturer must disclose that fact, in writing, in a clear and conspicuous manner, on a separate piece of paper in ten-point capital type.  In the face of such language, BUYER BEWARE, you may not be able to make lemonade.  

Should you have any questions regarding the Virginia Lemon Law, please do not hesitate to contact Benjamin Dill (bdill@setlifflaw.com) (804) 377-1272 or Steve Setliff (ssetliff@setlifflaw.com) (804) 377-1261.