chapter – 8 page – 18
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This is important: In many states, a vehicle can still be a lemon even if no repairs occurred during the lemon period. The decisive test is whether the manufacturer had a reasonable number of attempts to repair the vehicle. Ultimately, the judge or jury in each case still must decide this issue. For example, in a case my office recently handled, the manufacturer had sixteen attempts to repair the vehicle, but only three of them were during the lemon period-not enough to qualify for the presumption. The jury properly found that the manufacturer had a reasonable number of repair attempts. When the manufacturer appealed, it lost. Continue reading Chapter 8 – How Can I Tell If My Vehicle Is a Lemon? (Page-17)              
Effect of the Lemon Law Presumption In most states, if the consumer’s vehicle meets the presumption during the lemon period, the burden of proof shifts from the consumer to the manufacturer. The manufacturer now has the burden of proving that it did not have a reasonable number of repair attempts. As an example, remember the new car lemon story? Because Mr. and Mrs. Jones’s vehicle was in the shop four or more times for the Check Engine light and stalling problem within the first 18 months or 18,000 miles,5 in California it is presumed that the manufacturer had a reasonable number of repair attempts. If the manufacturer claims that Mr. and Mrs. Jones did not give it enough repair attempts, the burden will be on the manufacturer to prove it. Continue reading Chapter 8 – How Can I Tell If My Vehicle Is a Lemon? (Page-16) 
If a California consumer proves that a vehicle has been subject to repair four times for the same problem within 18 months or 18,000 miles, then the consumer has met his or her burden of proving that the manufacturer had a reasonable number of repair attempts. The presumption helps consumers meet their burden of proof if they have to go to trial. The Lemon Period As discussed earlier, state lemon laws generally look at repeated repairs for the same defect or total days in the shop when defining the lemon law presumption. However, most lemon laws also place a time and mileage limit on their presumption; that is, they define the period during which the repair visits must occur in order for the presumption to apply. Some states call this limit a lemon period. Continue reading Chapter 8 – How Can I Tell If My Vehicle Is a Lemon? (Page-15) 
Many presumptions are rebuttable. This means that the other party may present evidence to try to rebut, or disprove, the conclusion that the law would ordinarily draw. For example, your niece might testify under oath that she never received whatever you were trying to send her. If an opposing party tries to rebut a presumption, the burden of proof shifts to that party to disprove the natural conclusion. Ultimately, it is still up to the jury to determine whom to believe. Party: a person or group involved in an enterprise; a participant or an accessory; or a group involved in a legal proceeding. What Is the Lemon Law Presumption? Continue reading Chapter 8 – How Can I Tell If My Vehicle Is a Lemon? (Page-14) 
If a plaintiff does not satisfy the burden of proof, then the case may never get to the jury. As a somewhat silly example, suppose you have evidence of ten repair attempts for a failed engine. It might sound like you have a good lemon law case, but if the repairs were for some other vehicle that you don’t own, the judge would dismiss the case, because no reasonable juror could find that you had met your burden of proof. The burden of proof can also assist the jury when it is making its decision. Sometimes, the evidence on a disputed issue may be precisely balanced, so that it is just as likely to be true as it is to not be true. If the jury simply cannot decide whom to believe, then the party with the burden of proof on that issue has not satisfied it, and should lose. Continue reading Chapter 8 – How Can I Tell If My Vehicle Is a Lemon? (Page-13) 
There are at least two ways in which taking your vehicle to an independent repair facility can cause trouble. First, the lemon law allows the manufacturer a reasonable opportunity to repair the vehicle. An independent shop is not acting on behalf of the manufacturer, so any repairs done at such a shop do not qualify as attempts by the manufacturer to repair the vehicle. Second, manufacturers frequently claim that the work done at an independent shop is the real cause of your vehicle’s problems. They may even argue that the independent work voided that portion of the manufacturer’s warranty on your vehicle. You should always take your vehicle to an authorized dealer for warranty repair work. Continue reading Chapter 8 – How Can I Tell If My Vehicle Is a Lemon? (Page-12) 
More on Accurate Repair Orders The law requires that the dealership provide the vehicle owner all of the repair orders. On more than one occasion a client has told me that they don’t have all the repair orders, and that the dealership is refusing to provide them. This usually happens after the consumer has begun a lemon law case against the manufacturer. I talked earlier about the need for accurate repair orders. The consumer needs to document the day the vehicle went into the shop for repair and the date the vehicle was delivered to the consumer after the repair. It is from these dates that the consumer is able to prove how many days the vehicle was in the shop for all the various repairs. As noted in the previous section, the number of days in the shop is significant. Continue reading Chapter 8 – How Can I Tell If My Vehicle Is a Lemon? (Page-11) 
The number of repair attempts is also not significant under the days-out-of-service test. A vehicle that was in the shop for one repair attempt that lasted forty-two days would satisfy this test, as would a vehicle that was in the shop for thirty-five one-day repairs for thirty-five different problems. Here’s a little piece of advice: Once your vehicle has been in for repair the legal number of times, don’t take it back if you are pursuing a lemon law case. If they fix it, whether permanently or not, you won’t be able to prove the vehicle is defective. Continue reading Chapter 8 – How Can I Tell If My Vehicle Is a Lemon? (Page-10) 
Manufacturers will often argue that a repair visit should count as a repair attempt only if their dealership actually performed some kind of repair. If a dealership claims that it cannot duplicate a problem, or that the condition is normal, then it does no work on the vehicle. Even if you bring your vehicle in for repairs eight times for the same problem, if the dealership tried to fix it only once or twice, then the manufacturer will argue that it had only one or two repair attempts. The manufacturer’s argument doesn’t hold water. Your only duty is to give the manufacturer an opportunity to repair, by bringing your car back to an authorized dealer. It is not your fault if the dealer does not take advantage of the opportunity. Your entire repair visits count, regardless of what the dealer does or does not do. Continue reading Chapter 8: How Can I Tell If My Vehicle Is a Lemon? (Page-09) |
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