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IS MY VEHICLE A “LEMON?” IF SO, WHAT ARE MY RIGHTS?

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Written by Steven Weiss   
Tuesday, 03 July 2012 17:09

I. An Introduction to Ohio Lemon Law

Like most states, Ohio has a Lemon Law that protects consumers who have purchased or leased a new vehicle that requires repeated repairs. It also protects individuals to whom a new car has been transferred while an express (written) warranty is still in force.

Ohio’s Lemon Law is codified in Ohio Revise Code § 1345.71 through 1345.77.

II. Key Requirements of the Ohio Lemon Law

The Lemon Law has some key requirements that must be met in order to take advantage of the protections provided by the Lemon Law. Below is a list of those key requirements.

Type of Vehicle: The Lemon Law does not apply to all motor vehicles. The Lemon Law primarily covers new (1) passenger cars and (2) noncommercial motor vehicles. It also covers (3) motor homes, which are defined as self-propelled recreational vehicles. Therefore, a recreational vehicle that is attached to a trailer hitch and towed would not be a “motor home” that is covered by the Lemon Law.

Non-Conformity: The Lemon Law only protects vehicles which do not conform to a manufacturer’s express (written) warranty. A manufacturer or its authorized dealer must make all necessary repairs to assure that a vehicle conforms to the manufacturer’s express warranty.

Duty to Report Non-Conformity: Even if you have a vehicle that does not conform to a manufacturer’s express (written) warranty, there is no duty to repair unless the vehicle owner or lessee reports the non-conformity to the manufacturer, its agent or authorized dealer during the earlier of the following two dates:

(1) One year following the date of original delivery; or

(2) Eighteen months.

The “date of original delivery” typically means the date the vehicle was delivered to the first titled owner.

Opportunity to Repair: Before you can demand any of the remedies provided by the Lemon Law, you must give the manufacturer an opportunity to repair the problem. But the question for most consumers is: how many times do I have to bring my new car in for repairs before I am entitled to the protection of the Lemon Law? Generally, a manufacturer has been given an ample opportunity to repair if any the following conditions are met:

(1) After three (3) attempts to repair the same the problem it has not been fixed.

(2) The vehicle has been out of service for repairs for 30 or more days.

(3) There have been eight (8) or more unsuccessful attempts to repair any problems.

(4) There has been one (1) unsuccessful attempt to repair a problem that could cause death or serious bodily injury if the vehicle is driven.

No Abuse, or Unauthorized Modification or Alteration. If a vehicle has been abused or modified or altered in a way that is prohibited by the express warranty, you will most likely lose the protections afforded by the Lemon Law.

III. Assuming you have met all of the key requirements and you have Lemon, what are your rights?

You have various options once it is established you have a Lemon and that the manufacturer has not been able to properly repair your vehicle:

Option 1: Try to negotiate a reasonable settlement.

A negotiated settlement is often preferable to filing a lawsuit. Lawsuits can extend for many months or even years, particularly if the party that is dissatisfied with the outcome of the lawsuit files an appeal. A negotiated settlement can provide compensation to the owner or lessee of a Lemon for the inconvenience associated with owning a Lemon. The owner of a Lemon can also seek compensation for the diminished value of the vehicle. There can also be a repurchase of the vehicle at a price that reflects the fact that the Lemon was often drivable and provided useful transportation for a significant period of time, despite the defect.

A negotiated settlement can also include payment of your attorney fees.

Option 2: Informal Dispute Resolution.

The manufacturer can request that the dispute be decided by a Dispute Resolution Board. The Attorney General of Ohio has created a Dispute Resolution Board that will hear evidence from both parties and render a decision. The Board can order that the vehicle be repaired within a fixed time period, require a refund, reimbursement of expenses (e.g. towing) and any other remedies available under the warranty or the Lemon Law. If the Board decides that the manufacturer has to repurchase the vehicle, it can reduce the purchase price for mileage, something a court is not permitted to do.

While the dispute is being considered by the Board, the consumer is not permitted to file a lawsuit. If the Manufacturer does not fulfill all of the requirements of the Board’s decision, the consumer can then file a lawsuit. The Board’s decision is binding on the manufacturer.

The Board can award attorney fees.

Option 3: File a Lawsuit.

Unfortunately, not all disputes can be resolved through negotiations or with the assistance of the Dispute Resolution Board. In those instances, the consumer must file a lawsuit. A lawsuit must be filed within five (5) years of the date of original delivery.

Once a lawsuit is filed, the manufacturer is faced with the prospect of having to (i) replace the vehicle with a new vehicle or (ii) refund to the consumer the full purchase price of the vehicle along with all incidental expenses (charges for a rental vehicle, towing fees, etc.)

Attorney fees are also awarded to the consumer if he or she wins the lawsuit.

IV. My Car is Used. Does this Mean that I am Out of Luck?

Unfortunately, if you purchase a used vehicle, then your car does not qualify as a Lemon under Ohio law. However, you may be able to file a claim for breach of an express or implied warranty under the Magnuson-Moss Warranty Act.

The Magnuson-Moss Warranty Act, 15 U.S.C. §2301 et seq., is a Federal Law that protects the buyer of a vehicle which comes with product warranties, both written and implied. This law applies to new and used vehicles that do not perform as they should. Generally, there are three types of warranties that are covered under the Magnuson-Moss Warranty Act:

1. Written Express Warranties.

Magnuson-Moss dictates the terms and conditions that must be clearly listed in warranties. It also mandates that warranties must be written in language that is easy to understand. Consumers must be able to read the warranty before making a purchase. Additionally, a warranty must list the length of the warranty, what is covered under the warranty, the name and address of the warrantor, what actions the warrantor will take if a product does not conform to the warranty, and who will pay for defects.

In order to claim a breach of an express written warranty under the Magnuson-Moss Warranty Act, a consumer must demonstrate:

1) That the vehicle came with an express written warranty.

2) That the dealer has attempted to repair the defect, unsuccessfully. There is no magic number, but typically the courts have held that three unsuccessful attempts to repair is sufficient to pursue a claim under the Magnuson-Moss Warranty Act.

Unlike the state lemon law act, Magnuson-Moss applies to the vehicle as a whole, rather than to each individual defect that arises.

2. Implied Warranty of Merchantability.

Every vehicle is sold with an implied warranty of merchantability. That is, the seller implicitly promises that the product offered for sale will do what it's supposed to. This implicit promise applies to the basic functions of a car. It does not cover everything that could go wrong, like a broken stereo.

In Ohio, a lawsuit or claim for breach of an implied warranty can only be pursued against the seller of the vehicle. A breach of implied warranty claim cannot be pursued against the manufacturer of the vehicle.

When filing a claim for breach of an implied warranty of merchantability, it is not necessary to prove a specific defect in the product. A malfunction itself, in the absence of abnormal use and reasonable secondary causes, may be sufficient evidence of a defect.

The issue in a breach of an implied warranty of merchantability case is not whether a specific defect caused the breach, but rather, whether the seller sold a good that was not fit for the ordinary purpose for which such goods are used.

Breakdowns and other problems after the sale don't prove the seller breached the warranty of merchantability. A breach occurs only if the buyer can prove that a defect existed at the time of sale.

3. Implied Warranty of Fitness for a Particular Purpose.

Also implied in the sale of a vehicle is an implied warranty of fitness for a particular purpose. A consumer who purchases a vehicle based on the seller’s advice that it is suitable for a particular use can claim breach of this warranty if the vehicle does not perform the way it is supposed to. For example, if a dealer suggests a particular vehicle for hauling, then the dealer is effectively promising that the vehicle will be suitable for hauling.

In Ohio, a lawsuit or claim for breach of an implied warranty can only be pursued against the seller of the vehicle. A breach of implied warranty claim cannot be pursued against the manufacturer of the vehicle.

V. What if I Purchased a Used Vehicle "AS IS"?

Sellers of used cars typically insert an “as is” clause in the sales agreement. This “as is clause” bars any implied warranties. However, if the agreement included an express written warranty, then that warranty still applies.

Additionally, even when a vehicle is sold “as is,” the purchaser may still have some remedy against the seller, if the seller committed fraud in connection with the sale of the vehicle. To prove fraud, a purchaser must demonstrate:

  1. The seller concealed a material fact or made a false representation concerning the vehicle;
  2. The concealment or false representation was material to the transaction;
  3. The seller knew that the representation was false;
  4. The representation or concealment was made with the intent to deceive the purchase;
  5. The purchaser reasonably relied upon the false representation; and,
  6. The purchaser suffered damages as a result of the fraud.

For example, Jane purchased a vehicle from Joe Dealer. Joe Dealer represented to Jane that the vehicle’s engine had recently been rebuilt. In fact, Joe Dealer knew that the engine had not been rebuilt and suffered from multiple problems. In this case, Jane could maintain a fraud action against the Joe Dealer.

If you believe that you have a potential claim under the Ohio Lemon Law, or if you believe that an express or implied warranty was breached or that you were the victim of fraud in connection with the purchase of your vehicle, please contact the Law Offices of Steven M. Weiss, toll free, at (877) 348-1802 or fill out our contact form to receive a free case evaulation with one our of experienced Cleveland personal injury lawyers.

 

Leading Causes of Motorcycle Accidents

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Written by Cleveland Personal Injury Attorneys   
Monday, 19 March 2012 19:45

Motorcycle riding is a favorite past time for many Americans.  A sunny afternoon drive, however, can take a deadly turn on the roadway resulting in tragic accidents and serious personal injuries.  Motorcycle accidents can be caused by a host of varied circumstances.  Some may involve the motorcyclist’s negligent conduct or careless driving; however, many others are caused by the fault of another driver on the road.  The most common cause of motorcycle accidents is the failure of motorists to detect and recognize motorcycles in traffic.  Given a motorcycle’s small size, its visibility may be limited by glare or obstructed by other cars on the roadway.  It comes as no surprise then that intersections are among the most common places for collisions to occur when drivers do not see the motorcyclist and fail to yield the right-of-way.  

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Making a Personal Injury Claim after a Hit and Run

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Written by Cleveland Personal Injury Attorneys   
Friday, 16 March 2012 13:39

In the state of Ohio and across the nation, there is a growing number of hit-and-run accidents.  While it is difficult to determine why individuals flee the scene, it may be that drivers in hit-and-run accidents are intoxicated, under the influence of an illegal substance, have a warrant out for their arrest, or may be driving without a license or proper insurance for their vehicle.  

In the unfortunate event that you or someone you care for has been involved in a hit-and-run accident, the immediate consequences from serious personal injuries, damage to property, expensive medical bills, and lost earnings and income are significant.  The reverberations may carry forward and have implications throughout your lifetime as you struggle to live with permanent injuries or disabilities and the impaired ability to seek gainful employment.  While many victims of hit-and-run accidents make the costly mistake of assuming that nothing can be done to recover for the injuries that they sustained, our Cleveland injury attorneys have worked with countless victims of hit-and-run accidents to recover money damages to compensate them for their injuries.

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Can I File a Wrongful Death Lawsuit?

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Written by Steven Weiss   
Tuesday, 17 January 2012 16:24

In Ohio, a wrongful death lawsuit can be filed by the estate of any person who died as the result of the negligent, intentional or wrongful misconduct of another person, a medical professional, or a company. 

A wrongful death lawsuit in Ohio can also be filed where there is no misconduct, but the death occurred because the decedent was mortally injured by an unreasonably dangerous product.  A product can be unreasonably dangerous if it was manufactured with a dangerous defect, or because the product’s design is unreasonably dangerous.  A product can also be unreasonably dangerous if it is marketed without proper warnings and instructions for the safe handling of the product.

Read more... [Can I File a Wrongful Death Lawsuit?]
 

Can I sue the Government?

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Written by Steven Weiss   
Wednesday, 04 January 2012 21:02

 Often a governmental agency, office or department is responsible for causing an injury. The scenarios in which a governmental agency, office or department can negligently cause injuries are too numerous to list, but they can vary from school bus accidents, transit authority accidents, allowing abuse to occur at a publically owned facility such as a group home for the handicapped, permitting a nuisance to remain on a public road that causes an automobile accident, or permitting a student to be subjected to excessive harassment by other students.

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Ohio Personal Injury Law Blog

Can I File a Wrongful Death Lawsuit?

In Ohio, a wrongful death lawsuit can be filed by the estate of any person who died as the result of the negligent, intentional or wrongful misconduct of another person, ... Read More

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