The Lemon Law Blog

The California lemon law covers defects that impair the use, value or safety of a vehicle. This is called the “substantial impairment” rule. Only truly trivial matters fall outside the scope of the lemon law.

To our surprise, some manufacturers try to tell car owners that defective windshield wipers are not worth worrying about and that a failure to fix them is not covered under the lemon law. Nothing could be further from the truth. Are they confusing “little” with “trivial?” If you live anywhere but the Atacama Desert, windshield wipers are among the most important safety devices on any passenger vehicle.

Just as November weather is upon us, the National Highway Traffic Safety Administration has issued a recall of Chrysler Jeep 2008 model SUVs for defective windshield wiper motors. NHTSA Campaign ID Number : 10V550 If you get this notice, respond right away.

The windshield wiper was first patented by a female inventor named Mary Anderson. During a winter visit to New York City in 1902, she noticed that the trolley car operator drove with the front window open because of difficulty keeping the windshield clear of blinding sleet. Bundling her own overcoat more tightly, she thought of a mechanism to control the blade from inside of the trolley and keep the draught out. She had a model made of her design and patented it shortly thereafter. In those days a patent was good for just 17 years, and the auto industry took it up as soon as it expired.

Most automobiles use two synchronized radial type arms, while some SUVs and station wagons use one pantograph arm. The intermittent windshield wiper was invented by Bob Kearns. His battle with Ford Motor Company was chronicled in the award-winning movie, “Flash of Genius.”

Although there is a range of acceptable design, properly functioning windshield wipers are standard safety features on passenger vehicles. Don’t let any car dealer tell you otherwise.

Kemnitzer Barron & Krieg is hearing complaints that Honda Civic tires wear out prematurely. According to reports, the rear suspension was improperly designed in the 2006 and 2007 model year Honda Civics, so that when the vehicle is weighted down the tires end up curving inward, rather than remaining level as they should. This inward curve may cause the tires to wear out far more quickly then they should, as pressure is applied to the tires at an improper angle. In 2008 Honda issued a bulletin to its authorized Honda dealerships regarding this problem. The bulletin allowed dealers to replace the badly designed suspension part at Honda’s cost, and grant buyers a credit toward a new set of tires, the amount of which depended on the amount of use the tires received. However, thousands of Civic owners had already replaced these tires at their own cost and paid for alignments that they did not need, but mechanics had recommended. The unneeded service was recommended because the mechanics did not know the real cause of the premature tire wear. If you are a Civic owner who had to replace your tires early at your own cost please give us a call. This Honda Civic tire problem proves the importance of the phrase “where the rubber meets the road,” both literally and figuratively. Literally in the sense that the improper location where the rubber of the tires contacts the road has resulted in serious problems, and figuratively, because in this moment of truth thousands of 2006 and 2007 Civic owners will likely realize they have spent thousands of dollars because of a manufacturer defect.

Kemnitzer Barron & Krieg attorneys are working on cases for clients with BMWs that have shut off in traffic. Investigation shows the following model BMWs may be subject to the defect that has caused our clients cars to stall: BMW 135i, 335i, 335xi, 535i, 535xi, X5 sdrive35i, X6 sdrive35i, Z4 sdrive35i. It appears to involve essentially all models with BMW’s 300hp twin turbo engine. The fuel pumps in the cars suffering from this defect cannot pressurize the fuel reliably at the pressure required for the twin turbos. Once the pump fails, the engine does not get the amount of fuel required and the car loses power. At best the affected cars will take extra time to start and run roughly, sometimes the cars will run with limited power, while at worst they shut off suddenly. We have reports of these BMWs stalling suddenly at high speeds, even at 70 mph on a Los Angeles freeway. Imagine: the car shakes violently and then loses all power. When a car loses all power it soon thereafter loses power steering, and hydraulic brake assist. This can make the car difficult to stop and difficult to maneuver. Crashes have been reported to the NHTSA as resulting from the fuel pump failure in these BMWs. BMW in its own report to the National Highway Transportation Agency noted that it was aware of the problem back in 2008. BMW has only now issued a recall on all the affected cars, even though it noted in its report to NHTSA in 2008 that loss of all power could occur as a result of the fuel pump failure and that the steering and braking of the affected car would be compromised. If you own one of these cars, take care to look for the early indications of a possible failure. If the car takes longer to start then it has in the past, the check engine light comes on, or the car is running roughly, go immediately to your warranty repair center. If this problem has been worked on and reoccurred, you may have a claim to have your car repurchased by BMW under California’s lemon law, the Song-Beverly Act. Just because a recall has been issued does not mean that the Lemon Law does not apply, especially if BMW has had a number of attempts to solve the problem and been unable to do so. Regardless of what you do, ignoring the problem will not make it go away, and may lead to the ultimate nightmare.

The National Consumer Law Center just launched a new website. Check it out here. The nonprofit center, headquartered in Boston, has been a premier source of assistance for consumers, legal services and consumer lawyers for decades.

Its new website provides information on NCLC's recent reports, numerous publications and current initiatives. Among other things, NCLC publishes reports on scams and predatory trends in consumer transactions, manuals and treatises on a wide variety of legal topics affecting consumers, as well as other books for lawyers and the public alike. NCLC is the publisher of "Return to Sender - Getting a Replacement for Your Lemon Car" by Nancy Barron.

In addition to its publications, NCLC funds research, legal conferences and consumer education programs on a wide range of important consumer topics -- from automotive fraud and warranty law, to financial abuse of the elderly, energy policy, student loans, and predatory lending.

Kemnitzer, Barron & Krieg is actively involved in the work of NCLC. Bryan Kemnitzer is a member of the partner's council and Nancy Barron currently serves on its board of directors.

Airbags in a car are like the lifeboat on a small vessel. You don’t need them often, but you do need to know that they will work in an emergency. The problem is there is no easy way to test them out, because once deployed they must be professionally repacked.

Several years ago, a man and his wife came into our office. They had purchased a truck advertised to have driver’s and passenger’s side airbags. When their grandchildren came to visit, they looked for a switch (sometimes called a PSIR) that can suppress the airbag when children are present in the front seat. There was no suppression switch. Why? Because there were no airbags! Somehow, the manufacturer had engineered the vehicle in just such a way that the airbag did not fit on the passenger side. Oooops. The manufacturer (in that case GM) later argued that it “forgot” to tell the buyers they had left the airbags out. The vehicle could not be modified to add the airbags later. We filed a class action and, in the end, the owners of thousands of vehicles were entitled to rescind and return their trucks.

Learning that the advertised airbags were missing was like tossing a packed lifeboat into the water only to watch it sink instead of float and deploy. Even with airbags in vehicles, it is wise (and required under California law) to buckle up as well for the best protection in a crash. While they should not be relied on in place of seatbelts, properly manufactured airbags do save lives.

The Center for Auto Safety deserves credit for being an early proponent of airbags, and remains a good source of information concerning the variations in safety records of different brands. Nissan has been no stranger to problems in its sudden restraint systems over the years. For that reason, it was not a total surprise today when NHTSA announced a Nissan recall for nondeployment of passenger airbags in 2005-2007 Infiniti cars. See NHTSA Campaign ID Number 10V175.

The National Highway Traffic Safety Administration reported today that Toyota is recalling certain 2003 Sequoia SUVs for a problem in the vehicle stability control system. Should the problem occur, the Sequoia "may not accelerate as quickly as the driver expects,increasing the risk of a crash." You can read the full recall notice here. The Sequoia was Toyota's first full-size SUV, coming out in 2001. Throughout the model lifetime, it has been marketed for families with children and carpool purposes, so even a remote or minor safety concern has serious implications for family use. The model has gone through a lot of changes since 2001, and for that matter since 2003. For the time being, this notice is limited to the 2003 model year.

Like other recalls, this announcement comes from the Office of Defects Investigation (ODI), a department within the National Highway Traffic Safety Administration (NHTSA). ODI conducts defect investigations and administers safety recalls to support the NHTSA’s mission to improve safety on the nation's highways. ODI also reports on and monitors the adequacy of manufacturers' own voluntary recall campaigns.
Toyota states that it will notify owners. However, most of the affected vehicles are otherwise out of warranty and may have changed ownership several times. For that reason, Toyota may not be able to notify new owners directly. If this applies to you, call the Toyota hotline at 800-331-4331 or go to the NHTSA sponsored website at http://www.safercar.gov.

The curtain closes this week on an iconic scene in American industrial history, when the last Tacoma truck and Toyota Corolla roll off the NUMMI assembly line in Fremont, California. Thus ends the last act of a drama in which 4,700 workers lost their jobs and the only major automotive factory west of the Rockies closed its doors.

The New United Motor Manufacturing Inc. plant, fondly referred to as NUMMI, opened in 1984 and continued for roughly 25 years. In that time it produced about 7.7 million cars and trucks at the massive 5.3 million sq.ft. complex.

In the beginning, NUMMI was hailed as a bold experiment, in which a unionized American manufacturing force melded with Japanese management. NUMMI was a joint venture between General Motors and Toyota, which skeptics dismissed as strange bedfellows. But the relationship turned out to benefit both. Toyota got a “Made in USA” gloss to its products and GM got Japanese manufacturing expertise. The UAW workers were introduced to “kaizan,” the Japanese concept of continuous improvement. The NUMMI marriage lasted amicably for a quarter century of production. But when GM hit the skids last year and pulled out of their venture, Toyota just couldn’t hold on to NUMMI alone.

Despite months of warning and generous severance packages, the union workers express disappointment and devastation. A pall of disbelief hangs in the Bay Area air. A remarkable number of employees are quoted as saying that the atmosphere at the plant was like a family. Many express personal and professional pride in the factory’s well-known record for quality. While Toyota, like every car manufacturer, is occasionally plagued with design defects, NUMMI had a reputation for rarely letting a mechanical defect roll out the door.

The NUMMI plant was often referred to as a “great American success story.” That hopeful phrase now rings as hollow as an echo through NUMMI’s cavernous and empty assembly halls. For more information click here

This week, we received notification from NHTSA's Office of Defects and Investigation concerning Ricon wheelchair lifts used in Diamond Coaches. These vehicles are small buses used to transport senior citizens and others who are unable to drive. The defect notices involve nonconformities in the restraint belt and lift software which could result in possible injury to wheelchair occupants. The manufacturer offers a warning label and a user DVD while Ricon attempts to fix the problem. You can find out more about these recall and investigation notices by checking out NHTSA Campaign ID Number 10V106 and 10V109.If, in fact, the occupant in the wheelchair is not secure when lifted into the vehicle, clearly more than a warning is needed.

The market for medical equipment, vehicle modifications and assistive devices, is big business. Health care patients are consumers of medical equipment. The California Lemon Law applies to such goods when purchased for consumers and small businesses. Other California consumer protection laws, such as the Consumer Legal Remedies Act, even offer additional penalties if false advertising or other sales practices target senior citizens or disabled persons who suffer substantial physical, emotional or economic damage thereby. Other statutes protecting against financial abuse of the infirm or elderly can also apply.

The California Lemon Law (the “Song Beverly Consumer Warranty Act”) even has a separate section devoted to wheelchairs, requiring that they “shall be accompanied by the manufacturer’s or lessor’s written express warranty that the wheelchair is free of defects.” In addition, the Act states that every sale of “assistive devices” in California carries an implied warranty that the “device is specifically fit for the particular needs of the buyer.” The definition of “assistive device” excludes eyeglasses, but is otherwise extremely broad.

At the same time, not every manufacturer is liable for vehicle modifications that it does not authorize. So-called “after market” adaptations, if unauthorized, may void the original manufacturer’s new vehicle warranty. The dealer or installer may be the party who is liable if the aftermarket alteration fails.

Seniors, health care patients and disabled persons are especially vulnerable to fraud and abuse. California lawmakers have enacted strong laws to protect this population from deceptive practices and defective products.

Kemnitzer, Barron & Krieg LLP, the host of this California Lemon Law Blog, has just launched a new website with a Q&A section on a variety of consumer protection areas, ongoing consumer alerts, attorney biographies, internet resources, a bibliography and contact links. Check it out here

The firm represents consumers throughout California and has, to date, filed cases in 34 separate California counties. Bryan Kemnitzer, Nancy Barron and Bill Krieg have a combined 99 years experience as trial attorneys fighting to protect consumer rights.

Supported by a dedicated staff, attorneys in the firm have taken individual and class action cases to trial, obtaining verdicts and judgments that include punitive damages and civil penalties. On the other hand, the vast majority of cases settle prior to trial. In settlement, Kemnitzer, Barron & Krieg have obtained debt relief exceeding $300 million, as well as thousands of new car replacements and refunds.

As California consumer lawyers, the members of the firm believe that every consumer is entitled to safe and reliable transportation, fair credit, truth in lending, access to the courts and freedom from fraud. All clients have the opportunity to learn more about consumer protection in ways that increase consumer literacy and save money, as well as resolve the particular case at hand.

Several tire recalls went unnoticed last month, with media attention focused on Toyota recalls regarding sudden acceleration. National Highway Traffic Safety Administration notices, regularly delivered to my "lemon law" inbox, included manufacturer's voluntary recalls of SUV tires having a tendency to shred or exhibit “chunking,” with potential crash consequences. If you get a tire recall notice, be sure to arrange for your replacement tires without delay. Faulty tires can result in a serious loss of driver control, cause a crash, or leave you stranded. Recalls are expensive for manufacturers, which generally do not offer free parts – including free tires – without good reason.

Tires are like the fingers and toes of the vehicle. You take them for granted until they get injured or broken, and then you realize you can’t do without them. Tire checks are just not high on my personal "to do" list. But last weekend, my 17-year-old son noticed a loss of air in the left rear tire of the family station wagon. In a hurry, I thought of simply filling it with air at the gas station, but closer inspection found a nail embedded in the tread. We all need an occasional reminder to check the tires regularly, not just for nails and shredding, but overall condition and especially the traction surface.

Tire labeling regulations require that a lot of important information appear on the tire itself. This and more information on tire safety is found on the NHTSA website.

In addition to having the tires rotated according to the schedule set out in the owner’s manual, you should periodically check for routine wear and tear. The “life” of a tire varies greatly with the kind of car or truck you drive. While a lightweight compact might enjoy 60,000 miles before needing new tires, a luxury sports car may need new rubber at 30,000 mile intervals.

Whether exercising routine maintenance or shopping for a used car, it is not enough to check for overall tire condition – pay particular attention to uneven wear. The technician will lapse into jargon like “camber” and “toe-in,” but if a simple visual inspection shows any kind of irregular wear pattern, it could be a symptom of more serious issues: alignment problems, steering defects or even frame damage from a prior accident. When buying a used car, the tires can thus be a potent indicator of whether the vehicle has seen previous abuse.

From a lemon law perspective, we look at tire issues as an important part of the vehicle history. Experts find that tire wear can reveal whether other defects have actually been fixed, as the service manager may insist, or are likely to recur over the life of the car.

Even as Toyota struggles to find the source of sudden acceleration, the U.S. Department of Transportation is offering advice on what do to if sudden acceleration happens while you are driving. Until either the company or federal investigators discover what component is causing the problem, no advice is a sure thing. However, the National Highway Traffic Safety Administration has posted the following steps a driver might take to control the vehicle racing out of control.

Actions Consumers Can Take If They Cannot Stop Their Vehicles

Regardless of the cause, if a consumer is experiencing unintended acceleration intheir vehicle, they should take the following steps:
• Brake firmly and steadily – do not pump the brake pedal.
• Shift the transmission into Neutral (for vehicles with automatic transmissions and the sport option, familiarize yourself with where Neutral is – the diagram may be misleading).
• Steer to a safe location.
• Shut the engine off (for vehicles with keyless ignition, familiarize yourself with how to turn the vehicle off when it is moving – this may be a different action than turning the vehicle off when it is stationary).
• Call your dealer or repair shop to pick up the vehicle. Do not drive it.

You can find more information about sudden acceleration and other recalls here.