Loyola Consumer Law Review

Volume 11 | Issue 1 Article 5

1998

State Lemon Law Coverage Terms: Dissecting theDifferencesPhilip R. Nowicki PhD.Executive Dir. Of the International Assoc. of Lemon Law Administrators

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Recommended CitationPhilip R. Nowicki PhD. State Lemon Law Coverage Terms: Dissecting the Differences, 11 Loy. Consumer L. Rev. 39 (1998).Available at: http://lawecommons.luc.edu/lclr/vol11/iss1/5

State Lemon Law Coverage Terms:Dissecting the Differences

by Philip R. Nowicki, Ph.D.

State "lemon laws" provideconsumers statutory protection againstdefects when purchasing vehicles.Attorneys and consumers should beaware of the fact that state "lemonlaws" differ significantly from state tostate. Uninformed consumers,unaware of the differences in statelemon laws, may inadvertentlyrelinquish critical statutory protectionswhen purchasing vehicles across statelines.

This article analyzes the lemon lawcoverage terms in effect July 1, 1997, inall 50 states as well as the District ofColumbia.1 Section I addresses generalwarranty coverage terms, differingimpairment standards, and issuesrelating to place of purchase orregistration. Section II delineatescoverage term issues of non-traditionalvehicles and non-traditional usage ofvehicles. Section III addresses coverageterm issues pertaining to rights andreporting periods and attempts byconsumers to repair defects. Thisarticle concludes by analyzing the 1997legislation and the possible impact itmay have on lemon law coverageterms.

SECTION I

A threshold issue for any lemon lawcase is where the vehicle was

The author did his doctoraldissertation on lemon laws in 1987at the Syracuse University MaxwellSchool of Citizenship & PublicAffairs. From 1988-96, he served asExecutive Director of the Lemon LawArbitration Program in the FloridaOffice of the Attorney General. Hehas drafted model lemon lawlegislation for the Council of StateGovernments in 1988 and theNational Conference of StateLegislatures in 1990. Last year, heserved as Executive Director of theInternational Association of LemonLaw Administrators (IALLA), a non-profit organization formed in 1997.The author thanks Janet Smith,Florida Assistant Attorney General,for her help in editing the article.

purchased. The place of purchasedetermines which state's law theconsumer must look to for protection.After determining the applicable statelaw, the consumer must look to thegeneral warranty coverage terms sinceeach state's general warranty coveragediffers significantly. Finally, a state'sdefinition of impairment may createbarriers for consumer protection. Thesethree issues are addressed in this

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section.

Place of Purchase or Registration

In 25 states, lemon law coverage islimited to vehicles purchased in thatstate.2 Fifteen of these states explicitlycover leased vehicles which must beacquired in those states for the lesseesto receive protection.3 Another state,Iowa, covers vehicles purchased orleased in that state and vehiclespurchased or leased in other states ifthe consumer is an Iowa resident at thetime his or her rights are asserted.

Some lemon laws, such as those ofArizona, Illinois, South Dakota andVirginia, are silent as to the place ortype of transaction that triggerscoverage, but agency officials areinclined to deem an in-state sale (or, ifapplicable, lease transaction) as thegoverning criteria.4 New Hampshireand Ohio are also silent. However,New Hampshire recognizes in-stateacquisitions or registrations in itscriteria for eligibility for state-runarbitration.' Ohio covers in-state salesand also recognizes coverage forvehicles registered in that state, butpurchased elsewhere, viewing it as acondition for manufacturers to belicensed to do business in that state.6

The District of Columbia and 12 otherstates, besides New Hampshire andOhio, provide coverage for vehiclespurchased or registered in those states.However, Vermont requires the in-stateregistration to occur within 15 days oflease or purchase.

Alaska, Maryland and Oklahomause in-state vehicle registration as the

coverage determinant. Seven otherstates are even more restrictive,limiting coverage to those consumerswho purchase (or, if applicable, lease)and register vehicles in those states.8

However, in one of these states,Indiana, nonresidents who purchase orlease the vehicle in that state are alsocovered.

The coverage variations createinteresting scenarios. For example,Maryland consumers who buy in WestVirginia can opt for coverage underboth lemon laws. Conversely, WestVirginia consumers who buy inMaryland become lemon law "nomads,"falling outside the scope of eitherstate's criteria. Across the country,double or no coverage is more the rule,and single state coverage the exception,when consumers buy their vehicle inone state and register it in another.Consequently, the majority oftransferred military personnel andthose who move to other states afteracquiring their vehicles will findthemselves with a choice of lemon lawremedies, or none at all.

Warranty Coverage Terms

The terms of the vehicle's warrantycan play a factor in what is and what isnot covered under a state's lemon law.For example, several states tie coverageof a vehicle's defects to the terms of themanufacturer's written warranty. InAlabama, Alaska, Colorado, Georgia,Kentucky, New York, South Carolina,South Dakota and Wyoming, coverageof a vehicle's defects is tied to the termsof the manufacturer's written

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warranty. Fifteen states, Arizona,California, Connecticut, Maine,Montana, Nebraska, Nevada, NorthCarolina, North Dakota, Oklahoma,Oregon, Tennessee, Texas, Utah andWisconsin, appear to have the sameapplication. They limit warrantycoverage to any applicable expresswarranty and the manufacturers'written warranties disclaim all otherexpress warranties.

Six states, Delaware, Louisiana,Minnesota, Ohio, Pennsylvania andWest Virginia, also limit coverage tothe manufacturer's written warranty asit "pertains to the vehicle's conditionand fitness for use." New Jersey hasthe same provision, but also providesimplied warranty protection (discussedbelow). In Mississippi, Missouri andNew Mexico, the consumer's warrantyrights stem from the manufacturer'swritten affirmation of fact or promisein connection with the sale of thevehicle which relates to the nature ofthe material or workmanship, orpromises to meet a specified level ofperformance over a specified period oftime. In these states, a brochureprepared by the manufacturer thatpromises "an especially quiet ride"may create a warranty obligation thatthe manufacturer might otherwise nothave to meet. Arkansas, Florida,Hawaii, Iowa, Virginia andWashington have similar language, butalso apply it to other manufacturerexpressions. Arkansas, Virginia andWashington consumers also get certainimplied warranty rights (discussedbelow).

In Illinois, New Hampshire and

Vermont, consumers get the benefit ofany express warranty as that term isdefined under their state's UniformCommercial Code. It appears that, inthese states, certain representationsmade by the dealer could createwarranty rights that the manufacturerwould have to honor. Michigan has thesame provision, but limits suchwarranties to those made by themanufacturer. Consumers in Idaho alsoget the benefit of any express warranty,other than statements of value, opinionor commendation of the vehicle, orrepresentations of general policyconcerning buyer satisfaction. Indianaconsumers are covered when the defector condition does not conform to theapplicable manufacturer's warranty, oris one that substantially impairs theuse, market value, or safety of themotor vehicle. The second provision isunique for any state since it is set apartfrom the first provision and the rest ofthe statute does not confine it to anytype of warranty.

In the District of Columbia and NewJersey, consumers get the protections ofthe manufacturer's implied warranty.Virginia and Washington consumersget the benefit of any implied warranty.In Kansas, Massachusetts and RhodeIsland, consumers are covered insimilar fashion. The Massachusetts andRhode Island laws cover defects thatdo not conform to any applicableexpress or implied warranty. In Kansas,any applicable warranty can providecoverage. Maryland consumers get allexpress and implied warranty coverageprovided under that state's UniformCommercial Code. The implied

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warranties are of merchantability andfitness for a particular purpose.9 InArkansas, consumers get the benefit ofthe implied warranty of merchantability.Consumers in these jurisdictionsshould have implied warranty rights atleast for their respective state law'sterm of protection, or the term of themanufacturer's express warranty,whichever occurs first.1°

Impairment Standard

One area where states appear to bein agreement is the use of the term"impairment." In most states, to qualifyfor relief, a defect or condition mustsubstantially impair the use, value orsafety of the vehicle.11

In thirty-one states, the words,//use," "value," and "safety," comprisethe potential elements of vehicleimpairment. 12 One state, Texas,requires that the defect or conditionaffecting safety is one that creates aserious safety hazard. Fifteen statesrefer only to "use" and "value."' 3 NewYork and North Carolina simply use"value." The District of Columbia,Iowa and Tennessee specify theelements of vehicle impairment bydefinition only.

Often, the consumer only needs toprove one element of impairment tobecome eligible for protection underthe state's lemon law. In some states,"4

however, the consumer must provethat the defect impaired both thevehicle's use and value. Consequently,cosmetic flaws such as bad paint,frayed upholstery or trim, or even amisaligned dashboard, which affect

value are not likely to be covered, sincethey do not impair the vehicle's use.

States use the term "value"differently. For instance, Wyoming usesthe term "fair market value" instead of"value." While twenty-five other statesuse "market value."' 5 The word"market" makes the impairment testless subjective. Presumably, the test iswhether the defect substantiallyreduces the resale price of the vehicle,when compared to similar vehicleswithout the defect. In Texas, the defectmust cause a substantial loss in marketvalue. Massachusetts arbitrators mustconsider "whether the motor vehicle'smarket value is at least ten percentlower than it would have been, but forthe nonconformity(s)."' 6

Many states use the term,"impairment of the vehicle to theconsumer" to determine impairment. 7

This phrase makes the impairment testmore subjective. Consequently, the testfor impairment of use, value or safetyincludes a personal dimension,provided the consumer's concerns aregenuine or reflective of a particularneed or purpose. Interestingly, 11 ofthese states also use the term "marketvalue" instead of "value." 8 Many otherstates, however, do not refer toimpairment "to the consumer." 9 Thissuggests that more weight will begiven to other tests of impairment,including warranty repair costs,vehicle down-time, the projected life ofthe component with the defect,technical reports, or the "reasonableperson" standard.

Suprisingly only a handful ofstates20 define "impairment." In some

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instances, the definitions elevate thedegree of impairment the consumermust prove. In Alaska, for impairmentof use, the defect must be one that"prevents a motor vehicle from beingoperated or makes the vehicle unsafe tooperate." In Georgia, for impairment ofvalue, the defect must "diminish theresale value of the new motor vehiclemore than a meaningful amount belowthe average resale value forcomparable motor vehicles." In otherinstances, the definitions appear tohelp consumers. Tennessee,Washington and the District ofColumbia only require the consumer toprove the vehicle's resale value hasbeen diminished "below average." Thebenefits to consumers are less clear inVirginia, where consumers must showthe defect renders the vehicle "unfit,unreliable, or unsafe for ordinary useor reasonable intended purposes."Given the wide of array of use, valueand safety issues common to lemonlaw disputes, some of these definitionsare arguably both a help and a hindranceas to what constitutes substantialimpairment.

SECTION II

After ascertaining which state'slemon laws apply and how muchwarranty coverage is afforded, aconsumer must next determine if theirparticular vehicle is affordedprotection. Non-traditional vehiclessuch as recreational vehicles,conversion vehicles, trucks, andmotorcycles are covered in some stateswhile not in others. The variety of

coverage between states appliesequally to leased, demonstration andused vehicles as well as vehicles usedfor business.

Recreational Vehicles andConversion Vehicles

Twenty-seven states have lemonlaws protecting purchasers of motorhomes. In seven states, the entirevehicle is covered including livingfacilities.21 Ten states either excludeliving facilities or specifically exemptfacilities for cooking, sleeping, wastedisposal, etc.22 Consumers in thesestates can expect coverage for suchproblems as water leaks, wind noise ordefects in the cabin affecting passengers.Ten states limit coverage to the chassisor self-propelled portion of thevehicle.23 Most recreational vehiclemanufacturers utilize a separate chassismanufacturer such as Chevrolet,Freightliner, Ford, GMC, Oshkosh orSpartan. Even for the chassis,consumers are likely to receive aseparate warranty for the engine andtransmission from such companies asCummins Engine and AllisonTransmission. Since a consumer'srights are often tied to the manufacturerthat issues the warranty, recreationalvehicle owners who experience a broadarray of problems may be pittedagainst four, five, or even sixmanufacturers in a lemon law action.24

Most lemon laws cover conversionvehicles. Conversion vehicles arevehicles sold with modifications madeby a company other than the

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nameplate manufacturer. However,twelve states either specifically excludeconversions or may not coverconversions where the statutorydefinition of "manufacturer" is limitedto the entity that manufactured thevehicle. Those states are Alabama,Alaska, Indiana, Kansas, Kentucky,Massachusetts, Nevada, Ohio, Oregon,Rhode Island, South Dakota andWyoming. Montana covers vehicleconversions, except pickup truckcampers, while North Dakota excludesinterior equipment from its conversioncoverage.

Trucks and Motorcycles

All lemon laws cover light trucksthat are used primarily for personal,family or household purposes.Colorado, Michigan, Minnesota andVirginia specify pickup trucks in theirmotor vehicle definitions. Kentuckylimits coverage to vehicles with nomore than two axles.

Thirty-one states limit truckcoverage by weight, but few share thesame limit.25 At one end of the spectrum,South Carolina and West Virginiaexclude any truck with a gross weightin excess of 8,000 lbs. This thresholdexcludes such trucks as the Ford F-2504x4, the Chevrolet 3/4-ton 4x4, and theDodge Ram 2500.26 Conversely,Connecticut covers passenger andcommercial motor vehicles weighingup to 26,000 lbs. gross vehicle weightrating. Consequently, Class 6 truckmanufacturers such as Hino, Mack andNavistar,27 generally not associatedwith lemon laws, may be potentially

liable under Connecticut's law.For many truck owners, one pound

makes all the difference in lemon lawcoverage in several states. Trucks suchas the Chevrolet C/K Crew Cab 4-doorpickup and the GMC Sierra Crew Cab4-door pickup can carry a gross vehicleweight rating of 10,000 lbs. 28 and arecovered in Arkansas, Hawaii and Iowa,which include vehicles up to thatweight limit, but not in Alabama,Georgia, Montana and South Dakota,which cover vehicles less than thatweight limit. Several other states utilizea 10,000 lb. limit, but apply it todeclared gross weight (Arizona), orunladen weight (Wyoming), orregistered gross weight (NorthDakota). Florida has a limit of up to8,000 lbs. gross vehicle weight, which isthe maximum gross weight as declaredby the owner or person applying forregistration.29 Ohio caps coverage at aone-ton carry load, which iscomparable to a 10,000 lb. gross vehicleweight rating.

Fourteen states and the District ofColumbia do not indicate a weightlimit; however, in six of these states,Alaska, California, Massachusetts,Missouri, New Jersey andPennsylvania, trucks are eitherexcluded if used for commercialpurposes under the definition of"motor vehicle" or under the definitionof "consumer" which conditionsprimary use of the vehicle to personal,family or household purposes. Thesecaveats essentially eliminate most bigtrucks from coverage. Of the othereight states, Nebraska provides thebroadest coverage, having no weight

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restrictions, while expressly coveringuse for business purposes.z InNebraska, companies that purchaseClass 8 trucks (exceeding 33,000 lbs.gross vehicle weight rating)3 1 fromsuch manufacturers as Freightliner andKenworth are uniquely afforded lemonlaw protections.

Twenty states cover motorcycles,either expressly in the lemon lawdefinition of "motor vehicle" or byreference to the registration definitionof "motor vehicle" which includesmotorcycles. 2 Washington requires themotorcycle to have an enginedisplacement of at least 750 cubiccentimeters. Virginia's law applies toboth motorcycles and mopeds. Texas'law, in addition to motorcycles, coversall-terrain vehicles.

Leased, Demonstration and UsedVehicles

Leased vehicles or lessees areexpressly covered in thirty-two statesand the District of Columbia3 3 In 14 ofthese states, eligibility is conditionedupon the length of the lease, rangingfrom as little as a lease agreement thatexceeds 60 days for New Jersey to aminimum two-year lease for NewHampshire and Vermont. 34

In eleven states, consumers wholease vehicles may be covered if theirlease agreements hold themresponsible for having warranty itemsrepaired. 5 In these states, the definitionof "consumer" includes a separateclause that creates coverage for "anyother person entitled by the terms of

the warranty to enforce the obligationsof the warranty." In one of these states,Ohio, a 1994 decision by a stateappellate court upheld such aninterpretation. B Another, Montana,covers any other person entitled to thebenefits of the warranty.

Lessees may be covered in Idahoand Nevada. These states also coverother persons who can enforce thewarranty terms, but include the clauseunder the definition of "buyer" ratherthan "consumer." The lemon laws ofAlaska, Kentucky and Pennsylvaniaexclude mention of leased vehicles,lessees, or other persons who canenforce the warranty terms. Michiganexpressly excludes lessees from itsdefinition of "consumer."

Twenty states expressly coverdemonstrator or previously untitledvehicles. y One of these states, Texas,covers any motor vehicle notpreviously subject to a retail sale.Another, Wisconsin, applies toexecutive vehicles as well asdemonstrators.

New York covers used vehiclesprovided they are purchased, leased,transferred or registered in that statewithin the first two years or 18,000miles of operation from the date oforiginal delivery, whichever occursfirst. In twenty-two states and theDistrict of Columbia, used motorvehicles appear to be covered in thedefinitions of "consumer," which referto "any person to whom such motorvehicle is transferred during theduration of the warranty period." 8 Asimilar clause is found in the laws of

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fifteen other states; however, thetransferee's use of the vehicle must befor the same purposes as the transferorwho either acquired the vehicle forpurposes other than resale, or used thevehicle primarily for personal, familyor household purposes.39 Consequently,if the original consumer transfers thevehicle to a dealer, who subsequentlysells the used vehicle, it is unclearwhether the second consumer iscovered. Seven other states, Alabama,Arkansas, Iowa, Michigan, NorthCarolina, South Carolina and SouthDakota do not reference transfereesunder their definition of "consumer,"but do include "any other personentitled by the terms of the warranty toenforce its provisions." Consumerswho buy used vehicles during thewarranty coverage periods of the lawsof these states may have residualbenefits.40

Business Use

Vehicles acquired by businesses orused primarily for business purposesare likely covered to some degree inforty-six states, plus the District ofColumbia. However, only Nebraskaexpressly and unconditionallyprovides protection for consumers whoprimarily or exclusively utilize theirvehicles for business purposes. On theother hand, Massachusetts expresslyexcludes coverage when primary useof the vehicle is for business purposes.California, Illinois and Pennsylvanialimit coverage to primary use of thevehicle for personal, family orhousehold purposes. Minnesota

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requires use of the vehicle for personal,family or household purposes at leastforty percent of the time.

The term "consumer" is broadlydefined in some states, thereby,possibly allowing for coverage of abusiness vehicle. Arizona, Arkansas,Connecticut, Delaware, Indiana, Iowa,Kansas, Montana, New Hampshire,North Carolina, Oklahoma, RhodeIsland and Wisconsin define aI/consumer" as the purchaser (or, ifapplicable, the lessee) of the vehicle,other than for purposes of resale, andcoverage is not conditioned upon anyparticular use of the vehicle. TheDistrict of Columbia and Utah have thesame general provision, but the Districtof Columbia limits coverage to naturalpersons and Utah restricts coverage toindividuals. Kentucky covers anyresident person who buys a vehicle inthat state.

Other states have conflictingclauses in their definition of"consumer" making coverage ofbusiness usage of the vehicle unclear.For example, Colorado, Idaho,Louisiana, Nevada, New Mexico,North Dakota, Oregon and SouthCarolina define a "consumer" as "aperson who normally uses the vehiclefor personal, family, and householdpurposes," with a further reference thatalso includes "any other personentitled by the terms of the warranty toenforce its obligations." Eight otherstates use the same definition of"consumer," except five, Florida,Mississippi, Missouri, New York andWest Virginia, use "primarily" (instead

Volume 11, number 1

of "normally"), and three, Alabama,South Dakota and Virginia, use"substantially." The conflicting clausesin these sixteen states force thequestion: Does use of a vehicleprimarily, or even exclusively, forbusiness purposes negate lemon lawcoverage when the manufacturer'swarranty permits such use? Althoughmajor manufacturer warranties denycoverage when damage to the vehicleis a result of misuse or improperoperation of the vehicle, none void thewarranty for business or commercialuse of the vehicle.41

Three of these states, Florida,Mississippi and Virginia, recognize intheir legislative intent, the hardship adefective vehicle imposes on theconsumer. Arguably, such hardship isgreater on the newspaper carrier,florist, realtor, carpet cleaner or yardperson than on most other consumers.In Florida, a 1987 ruling by a stateappellate court upheld coverage for avehicle registered in a business name,since the entity was "a person entitledby the terms of the warranty to enforceits obligations."42 The Florida NewMotor Vehicle Arbitration Board, sinceits inception in 1989, consistently hasfound primary or exclusive use ofvehicles for business purposes to becovered in more than twenty rulings.43

Other states appear to providecoverage for business use for mostvehicles, by describing the type ofvehicles that qualify under thedefinition of "motor vehicle."Louisiana, Missouri and New Mexicohave other language in their definitionsof "motor vehicle" that, to some

degree, clarify coverage. Louisiana'sdefinition of "motor vehicle" excludes"vehicles used exclusively forcommercial purposes," which can beinferred to cover a broad array ofvehicles (other than those restricted byweight) primarily designed or used forbusiness purposes. New Mexico'sdefinition of "motor vehicle" includespassenger motor vehicles "normallyused for personal, family or householdpurposes." This definition is consistentwith the definition of "consumerproduct" under the Magnuson/MossWarranty Act and suggests that once itis established that the vehicle is thetype normally used for this kind ofpurpose, the business nature of its useis moot.44 Missouri's definition of"motor vehicle" excludes "vehiclesused as a commercial motor vehicle."Construed as a restriction on the typeof vehicle covered, rather than its use,lends support that business use of anoncommercial-type vehicle is covered.

Business use or business ownershipof vehicles is sanctioned in eight otherstate lemon laws with varyingrestrictions. Hawaii explicitly coversbusiness use, provided the vehicle isalso used for personal use, and restrictscoverage for business entities to onevehicle acquisition per year. Maine,Tennessee and Vermont cover anybusiness or commercial enterprisewhich registers no more than twovehicles. Michigan covers vehiclesacquired by a business, provided thebusiness purchases fewer than tenvehicles per year. In Georgia, abusiness that acquires a vehicle iscovered, provided it possesses no more

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than three new vehicles, has ten orfewer employees and has a net annualincome of no more than $100,000.Maryland excludes fleet purchases offive or more vehicles. Washingtonexcludes fleet purchases of ten or morevehicles. These provisions implycoverage for all other vehicles (withinweight or class limits) acquired bybusinesses or used for businesspurposes.

New Jersey excludes from itsdefinition of "motor vehicle"commercial vehicles or trucksprimarily used or designed totransport property. Alaska includesmotor vehicles "normally used forpersonal, family or householdpurposes" in its definition of "motorvehicle." This excludes vehiclesmanufactured for commercial purposes.On the other hand, primary or exclusiveuse for business purposes of a vehicledesigned for personal needs is likelycovered. Ohio covers "passengervehicles designed to carry not morethan nine persons" or "noncommercialvehicles used exclusively for purposesother than engaging in business forprofit. ' 45 These provisions excludemost commercial vehicles, but it isunclear whether passenger vehiclesprimarily used for business purposes,or noncommercial vehicles used forbusiness purposes, as opposed to thosedesigned and used to generate a profit,are covered.

SECTION III

Defect Reporting Period

Lemon law coverage is contingentupon a defect being first reported tothe manufacturer or dealer within aprescribed period (several states definethis period as the "lemon law rights"period). In most instances, the"reporting" occurs when the vehicle isbrought to the dealership for repair. In10 states, the defect must be reportedwithin the earlier of the first year or12,000 miles of operation of the vehicle. 46

In 16 states, the defect reporting periodis limited to the first year or term of themanufacturer's express warranty,whichever occurs first.47 Pennsylvaniauses the earlier of the first year, 12,000miles, or the manufacturer's expresswarranty term. Wyoming coversdefects reported within the first year.

The District of Columbia and theremaining twenty-two states havelonger coverage periods.Massachusetts and Rhode Islandprovide coverage during the earlier ofthe first year or 15,000 miles ofoperation of the vehicle. Marylandaffords coverage to the earlier of fifteenmonths or 15,000 miles. Ohiorecognizes the first year or 18,000miles, whichever occurs first. Indianaprovides a coverage period of theearlier of eighteen months or 18,000miles.

Florida uses eighteen months or24,000 miles, whichever occurs first,while Virginia is simply eighteenmonths.4 Connecticut, Montana, NewJersey, New York and the District ofColumbia provide coverage for theearlier of two years or 18,000 miles. InMaine, the coverage period is two

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years, 18,000 miles, or the term of themanufacturer's express warranty,whichever occurs first.

In Arizona, Hawaii, Iowa andWashington, reported defects arecovered for two years, 24,000 miles, orthe term of the manufacturer's expresswarranty, whichever occurs first. InMinnesota, the period is the earlier oftwo years or the manufacturer'sexpress warranty term. In NorthCarolina and West Virginia, consumersare covered if they report the defectwithin the first year or the term of themanufacturer's express warranty,whichever occurs later. In Arkansas, it isthe first two years or 24,000 miles,whichever occurs later.

New Hampshire and Vermont tiethe coverage period to the term of themanufacturer's express warranty. Formost motor vehicles, this is the earlierof three years or 36,000 miles.However, consumers who acquireluxury vehicles such as those made byAcura, BMW, Cadillac, Jaguar, Lexus,Lincoln, Mercedes-Benz, Saab andVolvo get basic coverage warrantyterms of four years or 50,000 miles,whichever occurs first, or longer(Infiniti's is four years/60,000 miles).Several manufacturers provide evenlonger warranties for drive traincomponents such as the engine,transmission, differential and driveshaft. For example, Hyundai, Isuzu,Kia, Mitsubishi, Nissan, Subaru andToyota cover these components for theearlier of five years/60,000 miles,Infiniti and Lexus for six years/70,000miles and Volkswagen for ten years/

100,000 miles.49

Application of the currentmanufacturers' express warranty termsas the exclusive coverage periodaffords broader protection for mostconsumers. However, most of thewarranties refer to mileage on theodometer, whereas most states thathave a mileage cap apply it to mileageattributable to the consumer'soperation of the vehicle. Somemanufacturer warranties still limitrepair of certain components such asbrake rotors and clutch disks oradjustments such as wheel alignmentto one year or 12,000 miles.5 0 Manyrecreational vehicle warranties arelimited to one year or 15,000 miles,whichever occurs first.5' Finally, asrecent as 1988, most manufacturerwarranties covered basic componentsfor only the first year or 12,000 miles.52

Over the past 30 years, automobilewarranties have vacillated betweenshort and long coverage periods. 3 Thecurrent trend of warranties of longduration has been good for consumerswho acquire automobiles, particularlythose covered by the New Hampshireand Vermont lemon laws.54

Multiple Repairs of the SameDefect

State lemon laws afford themanufacturer and its authorized dealermultiple opportunities to cure the samedefect or condition. The District ofColumbia and thirty-nine states allowfour opportunities to cure the samesubstantial defect or condition. Some

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states (discussed below) allow fewerattempts to repair serious safetydefects.

Ten states that afford fouropportunities for repair follow a "threeplus one" approach. That is, the samesubstantial defect may be repaired atleast three times, and then themanufacturer must be afforded a finalrepair opportunity following receipt ofwritten notice from the consumer. InArkansas, Florida and Iowa, themanufacturer has ten days from thedate the vehicle is delivered for thefinal repair to cure the defect. InAlabama and Georgia that period isfourteen days, and in Michigan, fivebusiness days. In Massachusetts, themanufacturer has seven days to curethe defect from the date it becameaware of three prior attempts. InAlaska, the manufacturer has thirtydays from the date it receives writtennotice from the consumer to performthe final attempt. In New Hampshireand Vermont, the manufacturer gets afinal repair attempt between the timethe consumer files for arbitration andthe time the hearing must be held,which is within forty days in NewHampshire and within forty-five daysin Vermont. However, if the consumeris not satisfied with the correctivework, the case goes forward toarbitration. New York's "three plusone" provision only applies torecreational vehicles; automobilemanufacturers have four attempts torepair. In North Carolina, themanufacturer, has fifteen days fromreceipt of written notice to perform

repairs, while in Tennessee, the periodis ten days from receipt of notice. InMissouri, manufacturers have ten daysfollowing written notification anddelivery of the vehicle. However, thesestates do not require such notice to bemade after the third attempt. Most ofthe other states that allow themanufacturer four repair attemptsrequire the consumer to give writtennotice, but do not specify when thenotice must occur or the time periodwithin which such repairs must beperformed.

Nine states' lemon laws permit onlythree attempts to repair the samedefect.56 Three states, Maine, NewJersey and South Carolina, have a "twoplus one" provision. In Maine, themanufacturer has seven business daysto cure the defect, following receipt ofwritten notice, while in New Jerseythat period is ten calendar days. InSouth Carolina, the manufacturer hasten business days to cure the defectafter the vehicle is delivered for thefinal repair. Ohio and Pennsylvaniaalso provide for three repair attempts,but do not require written notice to themanufacturer. Hawaii, Mississippi andWest Virginia specify three attempts,provided the consumer has given priorwritten notice of the defect to affordthe manufacturer an opportunity torepair. Mississippi provides ten workingdays to cure the defect, commencing onthe day of delivery of the vehicle forrepair. In Virginia, if the manufacturerhas received actual notice of the defectthrough a letter, response to a complaint,inspection of the vehicle or meeting

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with the consumer or dealer, threerepair attempts suffices. However, ifnone of these conditions has been met,the consumer, after three repairattempts, must then notify the dealeror manufacturer in writing, and themanufacturer has an additionalopportunity to repair the vehiclewithin fifteen days.

Two states have "four plus one"provisions which allow themanufacturer or its authorized dealerfive opportunities to cure the samedefect.5 7 In Rhode Island, themanufacturer has seven days to curethe defect from the date it becameaware of four prior repair attempts. InSouth Dakota, the consumer must givewritten notice after at least four repairattempts. The manufacturer then hasfourteen days from the date the vehicleis delivered for repair to cure thedefect.

Safety-Related Defects

A manufacturer is afforded fewerattempts to repair safety-related defectsunder certain state lemon laws. Intwelve states, a vehicle is presumed tobe a "lemon," if it has a serious safetydefect that cannot be repaired withineither one or two attempts. Serioussafety defects are described differentlyby the states, however, Arkansas,Connecticut, Hawaii, Iowa, Ohio andWest Virginia classify serious safetydefects as those likely to cause death orserious bodily injury if the vehicle isdriven. The District of Columbia,Virginia and Washington describeserious safety defects as those that

reduce the ability to control the vehicleor create a risk of fire, explosion orother life-threatening malfunction.Texas uses the term serious safetyhazard. Georgia refers to a life-threatening malfunction ornonconformity, and has a fewer repairthreshold if the defect is in the brakingor steering system. Maryland limitssafety defects to a failure in the brakingor steering system. In Minnesota,similarly, a serious safety defect isdefined as a complete failure in thebraking or steering system likely tocause death or serious bodily injury.

Some states permit a manufactureronly one opportunity to repair safety-related defects. In the District ofColumbia, Minnesota and Ohio, themanufacturer or its authorized dealergets one repair attempt for serioussafety defects. In Hawaii, Maryland,Virginia and West Virginia, themanufacturer gets one repair attemptas long as the consumer gave priornotice of the defect. Hawaii and WestVirginia require such notice to be inwriting.

Other states provide for two repairattempts for safety-related defects.Washington allows two repair attemptsfor serious safety defects. So doesConnecticut, provided that bothattempts occur within the first year.Other states employ a "one plus one"approach. Arkansas, Iowa and Texasrequire at least one repair attempt,written notice to the manufacturer, andthen a final opportunity to repair.Georgia has the same provision forbraking or steering defects, but

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requires two repairs followed by noticeand a final repair for all other serioussafety defects.

Days Out-of-Service

All fifty-one lemon laws have adays-out-of-service provision toaddress excessive vehicle downtime atthe dealership for repairs to one ormore defects. A majority of these statesrequire the vehicle to be out of serviceby reason of repair for a cumulativetotal of thirty calendar days.58 Some ofthese states, however, have differentcriteria to qualify for relief. Of thesestates, Kentucky has the highestthreshold, applying the thirty days tothe same defect. Georgia requires thatfifteen of the days accrue within thefirst year or 12,000 miles, whicheveroccurs first. In Washington, fifteen ofthe days must accrue within the termof the manufacturer's expresswarranty. In Texas, there must be atleast two repair attempts within thefirst year or 12,000 miles, whicheveroccurs first, and after thirty days, anonconformity must still exist. InMichigan, the "days" standard doesnot require an existing defect, but oneprovision to obtain relief is that adefect or condition continues to exist.

Some states measure "days"differently. For instance, in Florida, thedays out of service commence on theday the vehicle is brought in for repairand end on the day the consumer isnotified that the repairs have beencompleted,59 while in Vermont, a daydoes not qualify if the consumer hasthe vehicle for a major part of the day.

Arkansas excludes legal holidaysunder its "days" standard. Many statesmerely limit the days to businessdays.60 Consequently, weekend andholiday vehicle down time may notcount. Indiana also requires that anonconformity must still exist afterthe "days" threshold has been met. InIdaho, days are not considered out ofservice if the consumer is provided aloaner vehicle. In New Hampshire, ifthe consumer has the vehicle for amajor part of the day, that day is notconsidered as a day out of service.

Other states have cumulative daytotals of more than thirty days.Nebraska requires that the vehicle beout of service by reason of repair for acumulative total of forty days.Oklahoma requires forty-five days.Delaware requires more than thirtydays out of service, commencing on theday the consumer brings the vehicle infor repair. Montana requires thirtybusiness days out of service with theperiod to commence after the consumerhas notified the manufacturer or dealer(presumably the first time theconsumer brings the vehicle in forrepair).

A few states, however, require thatthe vehicle be out of service for fewerthan thirty days. New Jersey requiresthe vehicle to be out of service byreason of repair for a cumulative totalof twenty days, and that anonconformity still exists. New Jerseythen requires the consumer to givenotice after the days requisite has beenmet, affording an opportunity for finalrepair. In North Carolina, a consumeris potentially eligible for relief if the

520 Loyola Consumer Law Review Volume 11, number I

vehicle has been out of service twentyor more business days during anytwelve-month period. Maine,Massachusetts and Mississippi usefifteen business days as theirreasonable number threshold.

The vast majority of state lemonlaws do not require that a nonconformityexist after the last day out of service.6'This is because these provisions aretailored to remedy excessive timewithout the use of the vehicle, ratherthan failed attempts to cure defects.However, Alaska, Georgia,Massachusetts and Rhode Island havenotice or other requirements tied to afinal opportunity to repair (rangingfrom seven business days to thirtydays) that must be given after thevehicle has been out of service therequisite number of days. This impliesthere must be an existingnonconformity in need of correction.The incongruous language also has theeffect of adding days (out of service)spent on the final repair. If defects arecured on this final opportunity, it isunclear whether the consumer can stillapply the days-out-of-serviceprovision, or how new problems aretreated. In Georgia, a consumer isineligible for state-run arbitration,unless a nonconformity still exists. 62 InMassachusetts, on the other hand,consumers are eligible for state-runarbitration by showing themanufacturer had a final opportunityto cure the nonconformity(s).63 NewHampshire and Vermont also have afinal repair opportunity after the"days" threshold has been met. That

period commences after the consumerfiles for manufacturer-sponsored orstate-run arbitration. However, if theconsumer is not satisfied with thecorrective work, the case goes forwardto arbitration within the time periodwhen a hearing must be held.

Some states require that theconsumer give the manufacturer aspecific period of time to correctdefects. Alabama, Maine, Mississippi,Missouri, North Carolina, SouthCarolina, South Dakota, Tennessee andVirginia require anywhere from ten tofifteen consecutive days within whichthe manufacturer must correct defectsreported in writing. If notice is given inadvance of the cumulative "days"threshold, consumers can avoid orreduce the delay resulting from thesubsequent repair. However, ifconsumers wait too long to give notice,such that the final repair corrects thesedefects after the "days" threshold hasbeen met, consumers may be ineligiblefor relief, at least according to a recentstate-run arbitration decision inMaine. 64 In Iowa, consumers mustaccrue twenty days before they givenotice, and allow ten cumulative daysthereafter for repairs to conform thevehicle to the warranty. In Michigan, itis twenty-five days, then notice, andthen five business days to repair thedefect or condition. In New York,consumers with recreational vehiclesgive written notice after three repairattempts for the same defect or twenty-one days out of service, whicheveroccurs first. If they do not notify themanufacturer, subsequent days may

Loyola Consumer Law Review * 531998

not be taken into account. Because ofthese notice and repair time-frames, itis likely that consumers in these stateswill experience more than thirty daysout of service before they can invoketheir rights.65 In Florida, consumersmust give notice after fifteen or moredays out of service, and then afford themanufacturer or dealer at least oneopportunity to inspect or repair thevehicle. If notice is given after thirtydays accrue, the consumer is onlyobligated to give the manufacturer ordealer that one opportunity to inspector repair. Arkansas limits its notice andfinal repair requirement to attempts forthe same defect, not days out of

66service.

Multiple Defects

Consumers who experiencemultiple defects with their vehiclesrequiring several trips to the dealershipoften believe their dispute is eligiblefor lemon law relief; however, manyfail to meet either the "attempts" or the"days" thresholds.67 Three statesrecognize the frequency and potentialhardship of this situation, and providea unique standard to cover multipledefects. Kansas gives the manufacturerand its authorized dealers ten attemptsto repair substantial defects. Ohiolimits the number of repair attempts toeight. Arkansas provides for five repairattempts, provided they occur onseparate occasions.

Reasonable Number of AttemptsCoverage Period

In most states, a vehicle is"presumed" to be a "lemon" if itcannot be repaired within a reasonablenumber of attempts within a certaincoverage period .68 The burden of proofis then shifted to the manufacturer toshow that, under the circumstances,that number was not reasonable. Intwenty-seven states and the District ofColumbia, the period in which a defectmust be reported (usually the firstrepair visit) coincides with the periodwithin which the presumption that areasonable number of attempts mustoccur.69 Two other states haveincongruous language concerning theirtime periods. Vermont requires the firstrepair for a defect to occur within theexpress warranty term; however, itlimits the consumer's right toarbitration if the final repair provesunsatisfactory for the duration of theexpress warranty. West Virginiarequires the consumer to report thedefect within the first year or term ofthe manufacturer's express warranty,whichever occurs later, but limits areasonable number of attempts torepair that defect to the first year orterm of the manufacturer's expresswarranty, whichever occurs earlier.Consequently, consumers who firstexperience defects after the first year ofoperation of the vehicle, may not beeligible for lemon law relief.

Iowa and Washington have defectreporting periods similar to the periodwithin which a reasonable number ofattempts must occur, which is the first

54. Loyola Consumer Law Review Volume 11, number 1

two years or 24,000 miles, whicheveroccurs first. However, the defectreporting period also contains the termof the manufacturer's express warranty.That provision does not affectconsumers who experience problemscovered by the current basic warrantiesof automobile manufacturers.However, some Washington consumerswho acquire recreational vehicles (notcovered in Iowa) will be impacted iftheir chassis warranties only cover thefirst year of use, and a defect firstoccurs within the second year.

In Pennsylvania, the consumer mustfirst report the defect within the firstyear, 12,000 miles, or term of themanufacturer's warranty, whicheveroccurs first. However, there is nospecified time period within which areasonable number of attempts mustoccur. Pennsylvania's presumptionprovision, however, does reference areasonable number of attempts torepair or correct a nonconformity. Anonconformity is defined as "a defector condition which substantiallyimpairs the use, value or safety of anew motor vehicle and does notconform to the manufacturer's expresswarranty." Consequently, thepresumption likely can be applied tocover repair efforts for the duration ofthat warranty term.

In Indiana, the consumer must firstreport the defect within the firsteighteen months or 18,000 miles,whichever occurs first. LikePennsylvania, Indiana's law does notspecify a time within which a reasonablenumber of attempts must occur.

However, the consumer has two yearsto bring an action from the time thedefect is first reported. Consequently, itis likely that repair attemptsundertaken during the additional two-year period can be considered.

Of the other seventeen states, nineextend the defect reporting period tocover subsequent repair efforts undercertain circumstances. Florida,Michigan, Mississippi, Missouri, Oregonand Virginia provide the extensionwhen the defect has been reported, butnot cured by the expiration of thecoverage period. In Florida, that periodmay be extended for six more months,giving consumers as much as twenty-four months, depending on mileageaccrued, to meet the presumption.y InMichigan, repairs for existing defectscan be applied to meet the presumptionif they are made within the term of themanufacturer's express warranty, oreven after, if that period expires beforethe repairs are performed. Mississippi,Missouri, Oregon and Virginia do notprovide a specific time-frame for theextension, but instead have time limitsfrom the date of delivery of thevehicle when a lawsuit must be filed.This, in effect, caps the period tomeet the presumption. In Mississippiand Missouri, that period is eighteenmonths.7' In Virginia, it is at leasteighteen months, 2 and in Oregon, it isas much as twenty-four months,depending upon mileage accrued.Alaska, Massachusetts and RhodeIsland also extend the coverage period,but only for purposes of the final repairattempt. In Alaska, that period is

Loyola Consumer Law Review o 551998

fifteen months (three months beyondthe one-year coverage period).Massachusetts and Rhode Island donot specify a time-period for the finalrepair, but that repair would have to bemade before the deadline to file aclaim. In Massachusetts, consumershave eighteen months from the date ofdelivery to qualify for state-runarbitration, while in Rhode lsland,consumers have as many as threeyears, depending upon mileageaccrued, to bring a lawsuit.

Eight states provide longer coverageperiods to meet the reasonable numberof attempts presumption. In Alabama,Georgia, South Carolina, South Dakotaand Texas, the consumer must firstreport the defect within the first twelvemonths or 12,000 miles, whicheveroccurs first. Alabama and SouthDakota consumers get the benefit ofthe presumption of a reasonablenumber of attempts, if the attemptsoccur within the first twenty-fourmonths or 24,000 miles, whicheveroccurs first. In Texas, consumers musthave at least two repair attemptsperformed (or one attempt for a serioussafety defect) within the first year or12,000 miles. They get an additionalyear or 12,000 miles to meet thepresumption for repair attempts, or alimit of two years or 24,000 miles,whichever occurs first, for days out ofservice. In Georgia, consumers get anadditional two years or 24,000 miles,whichever occurs first, to meet thepresumption from the date of the initialrepair attempt.73

The South Carolina law is not clear

as to whether there is an extension oftime for a reasonable number ofattempts to accrue. Consumers areentitled to relief if a substantial defectis not repaired within a reasonablenumber of attempts within the firstyear or 12,000 miles. However, thesection that establishes a reasonablenumber of attempts specifies that theybe performed within the manufacturer'sexpress warranty term. Consequently,to meet the presumption, consumersshould have the earlier of the term ofthe manufacturer's warranty, or thestatutory time period to commence anaction, which is three years from thedate of delivery. In Minnesota, theconsumer must first report the defectwithin the first two years or the term ofthe manufacturer's express warranty,whichever occurs first. The law affordsconsumers three years from the date ofdelivery for further repairs to meet thepresumption of a reasonable number ofattempts. In Wyoming, the consumermust report the defect within the firstyear, but should get the benefit of thepresumption if a reasonable number ofattempts were undertaken within oneyear or the (manufacturer's) expresswarranty, whichever is later. In NorthCarolina, consumers must report thedefect within the first year or term ofthe manufacturer's express warranty,whichever occurs later. Consumers areentitled to relief if a substantial defectis not repaired within a reasonablenumber of attempts no later thantwent-four months or 24,000 miles. Thestatute does not specify "whicheveroccurs first," and presumably as a

56* Loyola Consumer Law Review Volume 11, number I

remedial statute, consumers should becovered for the duration of eitherperiod.

CONCLUSION

Recent Proposed Changes in StateLemon Laws

Florida

In 1997, Florida enacted severalamendments which affect lemon lawcoverage terms.74 The amendmentswent into effect on October 1, 1997, butonly apply to vehicles acquired on orafter that date. The amendmentsextend the defect reporting period(lemon law rights period) fromeighteen months or 24,000 miles,whichever occurs first, to twenty-fourmonths with no mileage limitation.However, the revisions eliminate thesix-month rights extension consumersmay receive if the defect was reportedduring the lemon law rights period,but not cured. The changes also allowrecreational vehicle manufacturers acumulative total of sixty, instead ofthirty, days out of service by reason ofrepair before the vehicle is presumed tobe a "lemon."

Pennsylvania

Pennsylvania has proposedlegislation which would affect severalcoverage terms. 75 It would expandcoverage to include leased vehicles andthe chassis portion of recreationalvehicles. It would eliminate therequirement that the vehicle both be

purchased and registered inPennsylvania. Vehicles acquired inanother state would be covered asalong as the consumer is a Pennsylvaniaresident and the vehicle is titled for thefirst time in Pennsylvania. Defectswould be covered provided they werefirst reported within the earlier of thefirst twelve months or 12,000 miles ofoperation. Two attempts to repairdefects in the braking or steeringsystem likely to cause death or seriousbodily injury would constitute areasonable number.

Other changes would either clarifyor reduce the scope of coverage. Theproposal would cover trucks up to10,000 lbs. gross vehicle weight rating.The consumer would have the earlierof eighteen months or 18,000 miles tomeet the presumption that a reasonablenumber of attempts had occurred.Under the current law, this coverageperiod is not specified and arguablyruns for the term of the manufacturer'sexpress warranty. The proposal adds anotification requirement after the thirdrepair attempt, creating a "three plusone" standard. Under the existing law,three repair attempts is presumed to bea reasonable number. The legislationhas passed the Senate, and is pendingin the House. It is likely that it will befurther modified and acted upon in1998.76

Vermont

Proposed amendments to theVermont law are primarily designed toexpand coverage to include largetrucks.' The changes would eliminate

Loyola Consumer Law Review e 571998

the 10,000 lbs. gross vehicle weightlimit and the provision which excludesbusiness and commercial enterprisesfrom coverage if they register or leasethree or more vehicles. They wouldalso eliminate the requirement that avehicle be registered in Vermont withinfifteen days of the date of purchase orlease. The proposal is pending, andwill not be acted upon until the 1998legislative session.

California

Proposed revisions to the Californialemon law would cover consumerswho use their vehicles for businesspurposes, provided the person orentity has no more than five vehiclesregistered under its name.78 Otherchanges would increase the defectreporting and reasonable number ofattempts coverage period from theearlier of twelve months or 12,000miles, to twenty-four months or 24,000miles, whichever occurs first.Furthermore, two repair attempts on asafety defect would be presumed to bea reasonable number, provided theconsumer had directly notified themanufacturer of the need for the repairof that defect. Like Vermont, theamendments are pending, and will notbe acted upon until the 1998 legislativesession.

Endnotes

I See ALA. CODE § 8-20A-1-6 (1993);ALASKA STAT. § 45.45.300-360 (Michie 1996);ARiz. REV. STAT. ANN. § 44-1261-1266 (West1994 & Supp. 1996); ARK. CODE ANN. § 4-90-

401-417 (Michie 1996); CAL. CIV. CODE §§

1793.2, 1793.22 (West Supp. 1997); COLO. REV.STAT. § 42-10-101-107 (1993); CONN. GEN. STAT.

ANN. § 42-179-186 (West 1992); DEL. CODEANN. tit. 6, §§ 5001-5009 (1993); D.C. CODEANN. § 40-1301-1304 (1990); FLA. STAT. ch. 681§101-118 (1995); GA. CODE ANN. § 10-1-780-794 (1994); HAW. REV. STAT. § 4811-1-4 (1993);IDAHO CODE § 48-901-919 (1997); 815 ILL.COMP. STAT. § 380/1-8 (West 1993 & Supp.1997); IND. CODE ANN. § 24-5-13-1-24 (Michie1996); IOWA CODE ANN. § 322G.1-15 (WestSupp. 1997); KAN. STAT. ANN. § 50-645 (1994 &Supp. 1996); Ky. REV. STAT. ANN. §§ 367.840-846 (Michie 1996); LA. REV. STAT. ANN. §§

51:1941-1948 (West 1987); ME. REV. STAT. ANN.tit.10, §§ 1161-1169 (West 1997); MD. CODE.ANN., COM. LAW, II §§ 14-1501-1504 (1990 &Supp. 1996); MASS. GEN. LAWS ANN. ch. 90, §7N 1/2 (West 1989 & Supp. 1997); MICH.COMP. LAWS ANN. §§ 257.1401-1417 (West1990); MINN. STAT. ANN. § 325F.665 (West1995); Miss. CODE ANN. § 63-17-151-165(1996); Mo. ANN. STAT. §§ 407.560-579 (West1990); MONT. CODE ANN. §§ 61-4-501-533(1995); NEB. REV. STAT. 60-2701-2709 (1988);NEV. REV. STAT. ANN. §§ 597.600-670 (Michie1994); N.H. REV. STAT. ANN. § 357-D:1-12(1995); N.J. STAT. ANN. § 56:12-29-49 (WestSupp. 1997); N.M. STAT. ANN. § 57-16A-1-9(Michie 1995); N.Y. GEN. Bus. LAW § 198-a(McKinney 1988 & Supp. 1997); N.C. GEN.STAT. § 20-351 (1993); N.D. CENT. CODE § 51-07-16-22 (1989 & Supp. 1997); OHIO REV. CODEANN. §§ 1345.71-77 (Anderson 1993); OKLA.

STAT. ANN. tit. 15, § 901 (West 1993); OR. REV.STAT. §§ 646.315-375 (1988 & Supp. 1994); PA.STAT. ANN. tit. 73, § 1951-1963 (West 1993);R.I. GEN. LAWS § 31-5.2-1-13 (1994 & Supp.1996); S.C. CODE. ANN. § 56-28-10-110 (Law.Co-op. 1991 & Supp. 1996); S.D. CODIFIEDLAWS § 32-6D-1-11 (Michie Supp. 1997); TENN.CODE ANN. § 55-24-201-211 (1993); TEx. REV.Civ. STAT. ANN. art. 4413(36), 6.07 (West Supp.1997); UTAH CODE ANN. § 13-20-1-7 (1996); VT.STAT. ANN. tit. 9, §§ 4170-4181 (1993); VA.CODE ANN. § 59.1-207.9-16 (Michie 1992);

58* Loyola Consumer Law Review Volume 11, number 1

WASH. REV. CODE ANN. § 19.118.005-904 (West1989 & Supp. 1997); W. VA. CODE § 46A-6A-1-9 (1996); Wis. STAT. ANN. § 218.015 (West1994); Wyo. STAT. ANN. § 40-17-101 (Michie1997), [hereinafter code sections arereferenced by state name].

2 See Alabama, Arizona, California,

Colorado, Connecticut, Florida, Illinois,Kansas, Louisiana, Maine, Massachusetts,Minnesota, Mississippi, Missouri, Montana,Nebraska, Nevada, North Carolina, NorthDakota, Oregon, Rhode Island, SouthDakota, Utah, Virginia, West Virginia, supranote 1.

3 See California, Connecticut, Florida,Illinois, Louisiana, Maine, Massachusetts,Minnesota, Mississippi, Missouri, NorthCarolina, North Dakota, Oregon, RhodeIsland and Utah, supra note 1.

4 Telephone Interview with HughHegyi, Arizona Attorney General's Office(May 13, 1997); Telephone Interview withSteve Rotello, Illinois Attorney Generals'Office (May 13, 1997); Telephone Interviewwith Palmer Hanson, South Dakota AttorneyGeneral's Office (May 14, 1997); TelephoneInterview with David Irvin, VirginiaAttorney General's Office (May 22, 1997).

5 See letter from Pat Sangillo, State ofNew Hampshire, Department of Safety,Motor Vehicle Arbitration Board, to'consumer" (form letter accompanying

arbitration application).

6 Telephone Interview with Ted

Barrows, Ohio Attorney General's Office(May 9, 1997).

7 See Arkansas, Delaware, Georgia,Hawaii, Idaho, Minnesota, New Jersey, NewYork, Texas, Vermont, Wisconsin, Wyoming,supra note 1.

8 Indiana, Kentucky, New Mexico,Pennsylvania, South Carolina, Tennessee,Washington, supra note 1.

9 See MD. CODE ANN., COM. LAW I §§ 2-312-315 (1997).

10 See Magnuson/Moss Warranty Act,15 U.S.C. § 2308 (1994).

11 Forty-five states use the term"substantially impairs." Alabama, SouthDakota, Virginia and the District ofColumbia use the term "significantlyimpairs." Mississippi and Missouri just usethe word "impairs."

12 See Alabama, Arkansas, California,

Connecticut, Delaware, Florida, Georgia,Hawaii, Idaho, Illinois, Indiana, Kentucky,Maine, Massachusetts, Mississippi, Missouri,Montana, New Hampshire, New Jersey,Ohio, Oregon, Pennsylvania, Rhode Island,South Carolina, South Dakota, Texas, Utah,Vermont, Virginia, Washington, Wisconsin,supra note 1.

13 See Alaska, Arizona, Colorado,

Kansas, Louisiana, Maryland, Michigan,Minnesota, New Mexico, Nebraska, Nevada,North Dakota, Oklahoma, West Virginia,Wyoming, supra note 1.

14 See Arizona, Colorado, Kansas,

Maryland, Montana, Nebraska, Nevada,New Mexico, North Dakota, Oklahoma,Wyoming, supra note 1. However, inMontana, the consumer is also eligible forrelief by showing substantial impairment ofthe vehicle's use and value or safety.

15 See Alaska, Arkansas, Colorado,

Hawaii, Idaho, Illinois, Indiana, Louisiana,Maryland, Massachusetts, Minnesota,Mississippi, Missouri, Montana, NewHampshire, New Mexico, Nebraska, NorthDakota, Oregon, Rhode Island, Texas, Utah,

Loyola Consumer Law Review * 591998

Vermont, Virginia, West Virginia, supra note1.

16 See MASS. REGS. CODE tit. 201, §11.10(11)(a) (1993).

17 See Arizona, California, Connecticut,

Georgia, Kansas, Maryland, Michigan,Minnesota, Mississippi, Missouri, Montana,Nebraska, Nevada, New Hampshire, NewMexico, New York, North Carolina, Ohio,Oklahoma, Oregon, South Carolina,Vermont, Virginia, West Virginia, Wyoming,supra note 1.

18 See Maryland, Minnesota,Mississippi, Missouri, Montana, Nebraska,New Hampshire, New Mexico, Oregon,Vermont, West Virginia, supra note 1.

19 See Alabama, Alaska, Arkansas,

Colorado, Delaware, Florida, Hawaii, Idaho,Illinois, Indiana, Iowa, Kentucky, Louisiana,Maine, Massachusetts, New Jersey, NorthDakota, Pennsylvania, Rhode Island, SouthDakota, Tennessee, Texas, Utah, Washington,Wisconsin, supra note 1.

20 See Alaska, Georgia, Hawaii, Iowa,

Tennessee, Virginia, Washington, District ofColumbia supra note 1.

21 See Alaska, Illinois, Maine, Oregon,

Texas, Wisconsin, supra note 1; MINN. STAT.ANN. § 168.011(25)(3)(b) (West Supp. 1997).

2 See Arkansas, Delaware, Florida,Missouri, Montana, New Jersey, Ohio,Oklahoma, South Carolina, Vermont, supranote 1.

23 See Arizona, California, Georgia,Kansas, Mississippi, New York, Utah,Virginia, Washington, West Virginia, supranote 1.

24 From January 1996 through August

1997, there were 71 cases submitted byrecreational vehicle owners to the FloridaNew Motor Vehicle Arbitration Board. Inseven cases, one manufacturer was named asa party; in 50 cases, two were named; inseven cases, three were named; in sevencases, four were named; in one case, fivewere named; and, in one case, six werenamed. The seven cases involving fourmanufacturers were Niebruegge v.Winnebago, Spartan, Cummins and Allison(96-0043/WPB), Bolser v. Winnebago,Oshkosh, Cummins and Allison (96-0200/TLH), Hirsch v. Winnebago, Spartan,Cummins and Allison (96-0246/ORL), Bell v.Fleetwood, Spartan, Cummins and Onan(96-0487/ORL), Coon v. Holiday Rambler,Oshkosh, Cummins and Allison (96-0922/TLH), Smith v. Coachmen, Spartan,Cummins and Allison (97-0098/ORL), andShelnutt v. Fleetwood, Freightliner, Allisonand Onan (97-0832/TPA). The one caseinvolving five manufacturers was B.A.P., Inc.v. Winnebago, Freightliner, Cummins,Allison and Onan (96-0406/TLH). The onecase involving six manufacturers was Rameyv. Holiday Rambler, Spartan, Cummins,Allison, Pacbrake and Nelson Industries (96-0341 /TLH). The cases are unpublished.

2 See Alabama, Arizona, Arkansas,Florida, Georgia, Hawaii, Idaho, Illinois,Indiana, Iowa, Kansas, Louisiana, Maine,Maryland, Montana, New Hampshire, NewMexico, North Carolina, North Dakota,Oklahoma, Rhode Island, South Dakota,Tennessee, Utah, Vermont, Washington,Wyoming, supra note 1; CONN. GEN. STAT.ANN. § 14-1 (11) (West Supp. 1997); OHIo REV.CODE ANN. § 4501.01(H) (Anderson 1997);S.C. CODE ANN. § 56-3-630 (Law. Co-op.Supp. 1996); W. VA. CODE § 17A-10-1 (1996).

2 Telephone Interview with CathySkaar of the Wisconsin Department ofTransporation (June 4, 1997).

60* Loyola Consumer Law Review Volume 11, number 1

27 See U.S. Medium/Heavy Duty TruckSales, April & YTD, AUTOMOTIVE NEWS, May26, 1997, at 22.

2 See 1996-Model Light-TruckSpecifications, AUTOMOTIVE NEWS, Oct. 9, 1995,at 8i-9i.

29 See FLA. STAT. ch. 320.01(12)(b) (1995).

30 In addition to Nebraska, the otherseven states are Delaware, Mississippi,Nevada, New York, Oregon, Texas andWisconsin.

31 R. L. POLK, New Vehicle Registration

Service, Trucks by GVW (1995).

32 See Alabama, Arizona, Kansas,

Maine, Massachusetts, Nebraska, Nevada,New Hampshire, New Jersey, New Mexico,North Carolina, North Dakota, Ohio,Oklahoma, South Dakota, Texas, Virginia,Washington, Wisconsin, Wyoming, supranote 1.

33 See Arkansas, California,

Connecticut, Delaware, Florida, Georgia,Hawaii, Illinois, Indiana, Iowa, Kansas,Louisiana, Maine, Maryland, Massachusetts,Minnesota, Mississippi, Missouri, NewHampshire, New Jersey, New York, NorthCarolina, North Dakota, Oregon, RhodeIsland, South Carolina, Tennessee, Texas,Utah, Vermont, Washington, Wisconsin,supra note 1.

34 See Arkansas, California, Florida,

Hawaii, Illinois, Indiana, Iowa, Maryland,Massachusetts, Minnesota, New Hampshire,New Jersey, Rhode Island, Vermont, supranote 1.

35 See Alabama, Arizona, Colorado,Nebraska, New Mexico, Ohio, Oklahoma,South Dakota, Virginia, West Virginia andWyoming, supra note 1.

36 See Pertuset v. Ford Motor Company,645 N.E.2d 1329, (Ohio Ct. App. 1994).

37 See Alabama, California, Florida,Georgia, Hawaii, Idaho, Iowa, Illinois,Michigan, Mississippi, Missouri, Nebraska,North Carolina, Pennsylvania, SouthCarolina, South Dakota, Texas, Virginia,Washington, Wisconsin, supra note 1.

3$ See Arizona, Connecticut, Delaware,Hawaii, Idaho, Indiana, Maine, Maryland,Massachusetts, Montana, Nevada, NewHampshire, New Jersey, New Mexico, Ohio,Oklahoma, Tennessee, Texas, Utah, Vermont,Washington, Wyoming, supra note 1.

39 See Alaska, Colorado, Florida,Louisiana, Minnesota, Mississippi, Missouri,Nebraska, North Dakota, Oregon,Pennsylvania, Rhode Island, Virginia, WestVirginia, Wisconsin, supra note 1.

40 See Arkansas Office of the Attorney

General, A Consumer's Guide to the ArkansasLemon Law, at 4. That publication indicatesthat, if within the first two years after theoriginal delivery date of the vehicle or forthe first 24,000 miles, whichever occurs last,the vehicle is transferred to someone else,that owner or person leasing the vehicle is alsocovered under the Lemon Law. See id.

41 See 1997 Audi Warranty USA; 1996

BMW Service Warranty Information; 1997Cadillac Warranty, Creating a HigherStandard; 1996 Dodge Dakota WarrantyInformation; 1997 GMC Light Duty Truck,Warranty and Owner AssistanceInformation; 1996-Model WarrantyInformation Booklet, Ford & Mercury Cars &Light Trucks; 1997 Lexus Owner's ManualSupplement, Warranty, Maintenance, andGeneral Information; 1997 Mazda WarrantyInformation; 1997 Mercedes-Benz Owner'sService and Warranty Information; 1996 Saab

Loyola Consumer Law Review e 611998

Warranties & Service Record Booklet; 1996Saturn Warranty & Owner AssistanceInformation; 1997 Volkswagen WarrantyUSA.

42 See Results Real Estate, Inc. v. Lazy

Days R.V. Center, Inc., 505 So. 2d 587 (Fla.Dist. Ct. App. 1987).

43 See DeBenedictis v. Chrysler (89-0071 /ORL); Perry v. GM-Chevrolet (89-0089/WPB); Ford v. Chrysler (90-0029/TPA);Gill v. Chrysler/Utilimaster (90-0155/FTM);Retherford v. GM-GMC (90-0263/ORL);Knapp v. Alfa Romeo (90-0701 /STP); Land v.Chrysler (91-0335/TLH); Aronoff v. Toyota(91-0498/WPB); Osborne v. Ford (91-0529/ORL); Foster v. Mercedes-Benz (92-0808/FTL); Byer v. Mercedes-Benz (93-0283/MIA);Bloom/Florida Water Treatment, Inc. v.Mercedes-Benz (93-0715/TPA); Grundman v.GM-GMC (94-0029/FTL); Wehnes v.Mercedes-Benz (94-0154/JAX); ValueCamera & Electronics v. GM-Pontiac (95-0339/MIA); Pressler & Associates, Inc. v.Ford (95-0569/TPA); Vorraso v. Ford (95-0691/WPB); Temp Tech A/C Corp. v. Ford(95-0733/ORL); Grand v. Mercedes-Benz (95-0919/ORL); Grochowski/Widdis v. Nissan(95-0932/ORL); McNeil v. Mercedes-Benz(95-1032/JAX); H & G Cable ConstructionCompany, Inc. v. Ford (95-1168/FTM);Cordell v. National RV/Ford (96-0664/TLH).The cases are unpublished.

44 See 15 U.S.C. § 2301(1) (1994).

45 See Ohio Rev. Code Ann. § 4501.01(E)(Anderson 1997).

46 See Alabama, California, Georgia,Idaho, Illinois, Kentucky, Oregon, SouthCarolina, South Dakota, Texas, supra note 1.

47 See Alaska, Colorado, Delaware,Kansas, Louisiana, Michigan, Mississippi,Missouri, Nebraska, Nevada, New Mexico,

North Dakota, Oklahoma, Tennessee, Utah,Wisconsin, supra note 1.

48 Effective October 1, 1997, Florida's"lemon law rights period" was extended to24 months from the date of original deliveryof the vehicle to the consumer, with nomileage limitation.

49 See Few Makers Change Warranties,AUTOMOTIVE NEWS, Nov. 3, 1997, at 24.

50 See 1996 Dodge Neon Warranty; the

1997 Mazda Warranty; 1996 Saab Warranty(which covers components such as wiperblades and drive belts for one year or 16,000miles, whichever occurs first).

51 See 1997 Airstream Warranty; 1997

Georgie Boy Warranty; 1997 WinnebagoWarranty.

52 See Japan Ups Warranties, AUTOMOTIVE

NEws, Dec. 19, 1988, at 18.

53 FEDERAL TRADE COMMISSION, StaffReport on Automobile Warranties (Nov. 18,1968) at 84.

54 In North Carolina and West Virginia,a reasonable number of attempts must occurin a period less than the term of the currentmanufacturer warranties. Consequently, thelonger manufacturer warranties are oflimited benefit to consumers in these twostates.

55 Two of these states, North Dakotaand Wyoming, use the phrase, "subject torepair more than three times."

See Hawaii, Maine, Mississippi, NewJersey, Ohio, Pennsylvania, South Carolina,Virginia, West Virginia, supra note 1.

57 See Rhode Island, South Dakota,supra note 1.

620 Loyola Consumer Law Review Volume 11, number 1

58 See Alabama, Arizona, Arkansas,California, Connecticut, District ofColumbia, Florida, Georgia, Iowa, Kansas,Kentucky, Louisiana, Maryland, MichiganMinnesota, Nevada, New York, Ohio,Pennsylvania, Rhode Island, South Carolina,South Dakota, Tennessee, Texas, Vermont,Virginia, Washington, West Virginia,Wisconsin, supra note 1.

59

(1997).See FLA. ADMIN. CODE ANN. r. 2-30.001

60 See Alaska, Colorado, Hawaii, Idaho,Illinois, Indiana, Missouri, New Hampshire,New Mexico, North Dakota, Oregon, Utah,Wyoming, supra note 1.

61 The only exceptions are Indiana,

New Jersey, Texas, and possibly Michigan.

62 See GA. COMP. R. & REGS. r. 122-

14-.03(f) (1991).

63 See MASS REGS. CODE tit. 201, §11.02(2)(e) (1993).

64 State of Maine, Lemon LawArbitration Program, Masek v. Ford, Case #96-96 (Apr. 14, 1997).

65 See State of FLORIDA ATTORNEY

GENERAL Lemon Law Arbitration ProgramAnnual Reports (1990-92). Prior to July 1,1992, Florida had the same "days" provisionas Iowa (discussed above). For 103 casesqualifying under the "days" standardsubmitted for arbitration in 1990, the vehiclewas out of service an average of 34.9 dayswhen the manufacturer was notified, and anaverage of 22.8 days thereafter, or a total of57.7 days. For 119 cases qualifying under the"days" standard submitted for arbitration in1991, the vehicle was out of service anaverage of 34.6 days when the manufacturerwas notified, and an average of 20.6 days

thereafter, or a total of 55.2 days. For 52 casesqualifying under the "days" standardsubmitted for arbitration from Januarythrough June 1992, the vehicle was out ofservice an average of 44 days when themanufacturer was notified, and an averageof 20.8 days thereafter, or a total of 64.8 days.

6 Compare ARKANSAS OFFICE OF THE

ATTORNEY GENERAL, A Consumer's Guide tothe Arkansas Lemon Law, at 7. Thatpublication directs the consumer to givewritten notice to the manufacturer for a finalchance to repair the defect after the thirdunsuccessful repair attempt or after the 30cumulative calendar day period.

67 See STATE OF NEW YORK ATTORNEY

GENERAL New Car Arbitration Program AnnualReports (1987-90). The consumers' failure toprovide evidence of at least four repairattempts for the same problem was theleading reason out of ten categories why theclaims were rejected for arbitration. See STATEOF FLORIDA ATTORNEY GENERAL Lemon LawArbitration Program Annual Reports (1989-92).The consumers' failure to show evidence ofat least four repair attempts for the sameproblem was either the first or second mostprevalent reason (out of as many as 18categories) why the claims were rejected.

M In 46 states and the District ofColumbia. Indiana uses the word,"considered," instead of "presumed" (to be areasonable number). However, inMassachusetts, Washington and Wisconsin,the vehicle is "deemed" to be a "lemon"upon proof by the consumer that themanufacturer was given a reasonablenumber of attempts within the coverageperiod.

69 See Arizona, Arkansas, California,

Colorado, Connecticut, Delaware, Hawaii,Idaho, Illinois, Kansas, Kentucky, Louisiana,Maine, Maryland, Montana, Nebraska,

Loyola Consumer Law Review * 631998

Nevada, New Hampshire, New Jersey, NewMexico, New York, North Dakota, Ohio,Oklahoma, Tennessee, Utah, Wisconsin,supra note 1.

70 If, prior to the first 18 months ofoperation of the vehicle, the consumeraccrues 24,000 miles, then the lemon lawrights extension would run six months fromthat date.

71 In both of these states, the consumer

also can file within 90 days following thefinal action of a panel of a manufacturer'sinformal dispute settlement procedure thatcomplies in all respects with 16 C.F.R. Part703.

72 The consumer also has 12 months to

file a claim from the final action taken by themanufacturer in its dispute settlementprocedure, if that period is longer than thelemon law rights period (which is 18months).

73 See GA. COMP. R. & REGS. r. 122-9-01(q)(2 ) (1990).

74 See 1997 FLA. LAWS ch. 245.

75 See S. 763, Pa. General Assembly (Pa.1997). The proposed law would also createan independent arbitration process,administered by the Pennsylvania AttorneyGeneral's Office.

76 Telephone Interview with John Kelly,

Pennsylvania Attorney General's Office(Aug. 8, 1997).

77 See S. 4, Vt. General Assembly (Vt.1997).

78 See S. 289, Cal. General Assembly

(Cal. 1997).

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