Dear Woman Motorist Automotive Law:
I purchased a NEW 1997 Acura 3.0 on November 30, 1996, one year ago this month. Today I took my car to the shop because the power window would not go down and return up without a struggle with the switch. After the dealership looked at the car they asked me if the car had any body work done to the door. My reply was no. They then go on to say that it appears that body work was done on the car and repainted. I know that I have not had any body work on the car and my suggestion to them was that the car was damaged before it was sold to me. The sales manager said he would call the Acura company and get back to me within 24 hours. What do you suggest that I do in between time.
Thanks for your reply in advance.
Kathryn
Attorney Steve Swann's Answer
Dear Kathryn:
New car damage can arise at the factory, during transit, and on the dealer's lot (i.e., lot damage). In most jurisdictions, at least three legal theories exist to protect consumers in your situation.
First, the law of deceit and fraud creates liability for intentional misrepresentations of material facts on which one relies to his or her detriment. On proof of wilfulness or reckless/wanton conduct, punitive damages can be available. Fraud by concealment or "silence" is actionable when there was a duty to speak. Generally there is a duty to explain to a new car purchaser that the vehicle is not in "new car" condition.
The second theory lies under the heading of warranty law. Warranties are promises, and for new cars, always come from the factory. Sometimes dealers give warranties, which can include the implied warranty of merchantability. State laws vary on this point and the "as is" sale. This implied warranty means the vehicle was in average condition under the circumstances of the transaction, was properly labeled, and could pass in the retail, new-car trade without objections. If the damage is due to the factory, and the manufacturer refuses to make reasonable repairs, one may claim breach of warranty. If the dealership did not sell the vehicle "as is," it may be liable for this implied warranty's breach. Warranty damages are generally calculated by determining the dollar amount by which one overpays for the merchandise; and alternative measure would be repair cost.
The third category arises by statute, courtesy of the legislature and the U.S. Congress. Most states have consumer protection statutes to protect us from misrepresentations, deceptive practices, and false promises in consumer transactions. Some states even provide treble or three times damages on proof of wrongdoing, in addition to entitlement to reimbursement to legal fees and costs to bring the "bad guys" to justice.
The first step should be examination of the extent of the damage. I would, for example, remove the interior door panel and look for "pull" holes and plastic filler; video is great for this type of discovery.
The next step should be a letter demand to the dealer (or factory if it is factory damage, which is highly unlikely) asking for repairs. You might want to also request that your complaint be submitted by the dealer to any arbitration panel to which the dealership subscribes.
If there is still no satisfaction, you may want to consider small claims court, or higher level courts in your jurisdiction. As this overview reveals, the law is not absolutely simple or clear. You should locate an attorney experienced in auto warranty and fraud litigation, and spend an hour or two understanding the principles and evaluating options and costs of litigation. Libraries and the Web have quite a bit of information also.
Your local bar association may have the names of attorneys that can help. The Center for Auto Safety, in Washington, D.C., also maintains a listing of attorneys around the U.S. experienced in these matters. Good luck and keep us posted on your progress.
Attorney Steve Swann for WOMAN MOTORIST Automotive Law
Send a message to Automotive Law
Disclaimer: The responses to legal questions on automobile law, and the information provided by Womanmotorist.com and Mr. Swann, are offered only for general educational purposes. They are not offered as and do not constitute legal advice or legal opinions. Mr. Swann is licensed in Virginia and Tennessee, and this information should not be considered as a substitute for specific legal advice from an attorney licensed in your jurisdiction. For assistance in locating your own automobile law attorney, you should contact your state, county or city bar association, or the Center for Auto Safety, Washington, D.C.