Why You Don’t Have to Use a Dealer for Repair Attempts

February 10, 2011

“It’s a common misconception that only car dealers can perform the maintenance services on a newer vehicle that is under warranty,” said Rich White, executive director, Car Care Council. “The recent FTC Consumer Alert is very clear on the issue. Consumers can have maintenance services performed by their local independent repair shop or even do the work themselves without affecting the warranty, even if dealers and manufacturers suggest the opposite. It is also important to note that using aftermarket parts does not void the warranty.”

The law Mr. White is referring to is 16 C.F.R. 700.10. The Code of Federal Regulation (CFR) are rules about and interpretations of the bills passed by the federal legislators. So the Magnuson-Moss Warranty Act is United States law enacted in 1975 agreed to by the House of Representatives  and the Senate, while the Federal Trade Commission (FTC) has the power to explain and enforce that law.

The federal lemon law prohibits “tying arrangements,” that is, making it a condition of the warranty that a consumer has to use a certain brand or product to get repairs. The FTC explains:

Under a limited warranty that provides only for replacement of defective parts and no portion of labor charges, section 102(c) prohibits a condition that the consumer use only service (labor) identified by the warrantor to install the replacement parts. A warrantor or his designated representative may not provide parts under the warranty in a manner which impedes or precludes the choice by the consumer of the person or business to perform necessary labor to install such parts.

No warrantor may condition the continued validity of a warranty on the use of only authorized repair service and/or authorized replacement parts for non-warranty service and maintenance. For example, provisions such as, “This warranty is void if service is performed by anyone other than an authorized ‘ABC’ dealer and all replacement parts must be genuine ‘ABC’ parts,” and the like, are prohibited where the service or parts are not covered by the warranty. These provisions violate the Act in two ways. First, they violate the section 102 (c) ban against tying arrangements. Second, such provisions are deceptive under section 110 of the Act, because a warrantor cannot, as a matter of law, avoid liability under a written warranty where a defect is unrelated to the use by a consumer of “unauthorized” articles or service.

Some manufacturers, however, try to avoid liability by claiming that a consumer used an “unauthorized” part, or did not go to an “authorized repair facility,” which caused the damage. But the burden should be on the manufacturer to prove the part or service caused the damage – not the consumer’s burden to prove it didn’t. If the manufacturer cannot meet this burden, then it has refused to repair the vehicle, itself a violation of the federal lemon law.

The Toyota Report

February 8, 2011

The review of the Toyota unintended acceleration cases by NHTSA and NASA officials has been released. Watch carefully how different news sources report the same story.

Reuters claims that no defects were found, calling it a “victory” for Toyota.

Bloomberg at least mentions that the report indicates there were mechanical flaws with the vehicles, just not electronic ones.

ABCNews offered a reasonably balanced report, reminding readers of the massive recall and problems with sticking accelerator pedals, gas pedals that became trapped in floor mats, and other safety issues.

CNN notes that Toyota now includes “brake override” 0n all its new vehicles – not just good public relations, but a safety system that would have automatically prevented unwanted acceleration if it had been a standard feature earlier.

The NHTSA and NASA websites have not been updated with the full report.

Ultimately, this is good news for drivers, because many cars, not just those on Toyota vehicles, use electronic throttles – and there is lots of potential electromagnetic interference.

But while the report may be admissible in a court of law, it only rules out, essentially, one potential cause of unintended acceleration; the report does not disprove that there was unintended acceleration in some vehicles caused by other problems. It is not necessarily a consumer’s burden to provide a detailed mechanical explanation of the defect – only that a nonconformity (such as unintended acceleration) existed that was not repaired, or not repaired within a reasonable amount of time.

Law Office of Bryan Brody is on Facebook

February 7, 2011

The number of recalls is increasing – Ford is recalling the 2011 Ford Explorer and 281,000 F-150 trucks, Suzuki’s Grand Vitara may have defective engines,  Lexus had a recent recall, and the list continues to grow. Articles should discuss interesting issues, which are often raised by recalls, rather than simply posting every new recall.

Therefore, to better keep track of new vehicle and legal developments, Law Office of Bryan Brody has created a Facebook page!

Please visit at http://www.facebook.com/pages/Law-Office-of-Bryan-Brody-LLC/165234186858367

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