Archive for July, 2007

“No Reservations” Illustrates Emotional Damages

July 29, 2007

The other night, I saw the movie “No Reservations” with Catherine Zeta-Jones and Aaron Eckhart.  This was a wonderful movie about the culinary arts, but even more so, this was a movie about great loss, life adjustments, and love.  The movie reminded me why “pain and suffering”, “mental anguish”, and “emotional distress” are significant elements of damages for a family that loses a loved one as a result of the negligence, wantonness, or intentional acts of another.

In the movie, Catherine Zeta-Jones’ sister dies in a car accident, and Catherine Zeta-Jones becomes the guardian for her niece.  Catherine must totally revamp her lifestyle in order to care for her niece.  She has to change her work schedule, hire babysitters, get her niece to school, and all of this must be accomplished while she herself must mourn for the loss of her sister.  In the same breadth, we see the niece suffer through the significant emotional loss of her mother. 

While accidents happen, our tort system is intended to allow for compensation for these types of losses and damages.  Of course, money cannot bring back the mother and sister of these movie characters, but it is the only way to compensate these individuals, and given the significant life changes and emotional losses, money allows them to have one less worry.  Money allows people to move through the suffering and adjust to the unexpected situation.

This movie shows us why Alabama’s wrongful death statute is so ridiculous and inadequate.  In Alabama, the only damages recoverable under the wrongful death act are punitive damages, i.e.:  damages to punish the wrongdoer.  All of the other 49 states allow for compensatory damages for the decedent’s family.  In a case were the wrongdoer did not intend to kill the victim, it is difficult to convince a jury the wrongdoer should be punished.  Why should this be the case?  Are the other 49 states wrong?  If a person is not paying attention, runs a red light, and kills another person, it’s hard to get a jury to punish them, but shouldn’t the family be entitled to compensation nevertheless?

When death occurs as a result of another’s mistake, lives are affected.  Compensation allows for those whose lives are affected to make it through a very difficult time.  It’s time our State realized what the others realized long ago.

Right Handed Supreme Court

July 29, 2007

Has the Supreme Court of the United States moved too far to the right?  According to a recent poll conducted by the Washington Post and ABC News, the answer is yes.  The poll shows that the public’s opinion on this issue has changed significantly over the last two years.  Two years ago, only nineteen percent (19%) of those surveyed said the Supreme Court was too conservative.  Today, thirty-one percent (31%) of the public believe the Supreme Court is too conservative.  In the same time period, those who believe the Supreme Court is generally balanced in its decisions dropped from 55% to 47%.

These are important factors in light of the upcoming presidential election.  Since the President typically nominates Supreme Court justices based upon his political party’s social and economic agenda, citizens need to consider the Supreme Court when they consider presidential candidates.  President Bush has already changed the makeup of the Court with the appointments of Chief Justice John G. Roberts, Jr. and Justice Samuel A. Alito, Jr., and if President Bush or an incoming Republican candidate gets to nominate another justice, the results of such a poll will see a continued trend toward those who believe the Supreme Court is too conservative.

Mandatory Auto Insurance – Ha

July 23, 2007

Alabama instituted mandatory auto insurance in 1999.  A lot of good that did.  What good is mandatory insurance if it is not properly enforced.  What many have done is apply and obtain insurance only to let it lapse after they get their tag.

The Insurance Research Council has reported that twenty-five percent (25%) of Alabama drivers lacked insurance between 1999-2004.  According to the study, the percentage hasn’t changed from 1998, and Alabama is now tied for second in the country with California for the most uninsured drivers.  Thank you once again Mississippi (number 1).

The problem is in the statute’s penalty.  If someone’s license is suspended, they continue to drive, and their penalty if they are caught without insurance is a monetary fine.  They don’t pay the fine, and what happens?  Nothing. 

So, what do we do?  Begin monitoring the habitual offenders and begin making the penalty more severe.  People are injured in this State every day by uninsured motorists, and they need help financially as a result of their injuries.  We must do something to lower these uninsured figures, and while we are at it, we could increase the minimum limits from $20,000.00 to the $25,000.00 the legislature approved this year which Governor Riley vetoed.

Debt for the Elderly

July 23, 2007

It was reported in the Birmingham News on Saturday, July 21, 2007 that bankruptcies have increased for older Americans, specifically 55 and older.  Many of these older individuals spent their lives paying their bills on time, but these Americans were unable to save enough for retirement as a result of an increase in expenses and unexpected costs.  As a result, these people have turned to credit cards and increased their debt load.

What causes these increased debts?  healthcare, not enough social security income, helping adult children, and the death of a spouse.  Healthcare is obviously a big issue in this country, and given the fact that people are living longer lives, the cost of their care is an enormous drain on their assets.  Many of these individuals require assisted living at some point which is a risk in and of itself given the poor staffing of nursing homes.  Obviously, in-home help would be better, but often, Medicaid and Medicare are the only options, and these sources will not pay for in-home care.

What do we do about this problem?  That’s a difficult question to answer.  First and foremost, something must be done about the credit card industry.  Credit is given too easily without making sure individuals meet certain debt to equity/income ratios.  We have seen what happened in the mortgage industry with subprime loans – foreclosures out the wazzou.  If we are not careful, the same thing is going to happen with personal, unsecured debt.

Seven Lemon Law Mistakes

July 11, 2007

7 FATAL MISTAKES CLIENTS MAKE WHEN THEY HAVE A LEMON

            The Alabama Lemon law is a statutory creation which provides specific guidelines for people to follow in order to obtain a refund or replacement on the vehicle they purchased.  While the statute can be viewed as straightforward, it is also very technical, and many individuals fail to follow all of the proper steps in order to preserve their Lemon Law claim.  Additionally, people sometimes get caught up in the moment without thinking that the problem with their automobile may lead to a Lemon Law claim, and therefore, they do not prepare in advance.

            We have prepared the following report in order to assist people with their claims.  While this report discusses various legal items, it is not meant as legal advice or as a substitute for employing legal counsel to assist you with your Lemon Law matter.  You should always consult an attorney before attempting to handle your own legal matters.  You wouldn’t perform your own heart surgery, and you shouldn’t handle your own legal claims either.  However, notwithstanding the above, these are some things we think you should know which may assist you and your attorney when you purchase a lemon.

The Mistakes:

1.     Failing to obtain written service reports.

            One of the most important pieces of evidence in a lemon law case is the service report.  Typically, the service report includes the mileage of the vehicle, the dates the vehicle was in and out of service, the customer complaint, and the repair attempt.  Of course, many times the service technician or representative puts “unable to duplicate customer concern” on the service report, but at least this documents the complaint.

            Many times, customers take the car in with a complaint, and the service technician looks at the car while the customer is waiting.  If they say they cannot find anything wrong and give the car back within the hour or so service visit, they may not provide the customer with a service report.  Never, NEVER, leave the service department without written documentation of the visit and the complaint.

2.    Failing to make sure that the customer’s actual complaint is on the service report.

            Sometimes the service department of a dealership services the car, but the technician or service manager does not put the customer complaint on the service report.  This MUST be done.  A written document carries much more weight than simply telling a judge, arbitrator, or jury that you told the service technician what the complaint was.  The service technician can always say, “No she didn’t”.  The service technician cannot deny a written document that says, “The customer told me the passenger window stalls at times.”  Additionally, jurors like what they see, not what they hear.

            If the service department gives you a service report, READ it before you leave the service department.  If you don’t like what you see, make them change it.  If they won’t, write out a piece of paper that says they will not change it and try to get them to sign it.  Make sure you put the date on it and you sign it.  Do whatever you may appropriately do in order to get the proper complaint on the report.  However, do not argue and fight with the service department employees.  This will get you nowhere, and it sounds a lot better in court when the service personnel testify that the customer was very polite as opposed to: “he cussed me out for no reason”.  When you are calm and polite, you are seen as truthful and respectable.  When you are argumentative and belligerent, you are seen as less truthful.

3.    Specifying the problem (be general).

            If you think you have a noise in the engine, transmission, or front tire, don’t specify the location.  Tell the service department that you have a noise in the front of the car.  If you tell them it’s a noise in the engine and later complain about a noise coming from the front tire, it might be the same problem, but you have now made it two separate problems.  For the Alabama Lemon Law to apply, it must be serviced three times for the SAME problem.  Keeping the complaints general will help you in the long run.

            Furthermore, unless you have an automotive background or you are a certified mechanic, can you really tell what the problem is?  Don’t guess!  Tell the service department the symptoms, not the problem.  You don’t go to a doctor and say, “Doctor, I think I have spinal meningitis.”  You go to the doctor and say, “Doctor, my head hurts, my throat hurts, and I have a fever.”  Having your car serviced is similar.  Tell the service personnel the general symptoms with the car, and don’t try to diagnose the problem yourself.

4.    Waiting to send letter of non-conforming condition.

            The Alabama Lemon Law covers new cars within the first year or 12,000 miles so getting the Letter of Non-conforming condition to the manufacturer within that time period is imperative.  It is also mandatory that it be sent via certified mail.  If you wait to send the letter after the first year or 12,000 miles, you risk losing your lemon law claim. 

             The statute defines the “Lemon Law Rights Period” as the period ending one year after the date of the original delivery of  a motor vehicle to a consumer or the first 12,000 miles of operation, whichever first occurs.  Additionally, the “Obligations of the Manufacturer” are defined as follows: “If a new motor vehicle does not conform to any applicable express warranty, and the consumer delivers the motor vehicle to the manufacturer, its agent, or its authorized dealer, and gives notice of the nonconforming condition during the lemon law rights period, the manufacturer of the motor vehicle shall be obligated to make such repairs to the motor vehicle as shall be necessary to remedy any nonconforming condition thereof.”  If you read this literally, the “Notice of Nonconforming Condition” must be given during the first year or 12,000 miles; however, based upon other State lemon law statutes and other language in our statute, it could be read that the first problem must occur during the “Lemon Law Rights Period” (See § 8-20A-2(b) which includes the language ” which first occurred during the lemon law rights period”).  In any event, the safest course is to make sure you get the “Notice of Nonconforming Condition” to the manufacturer during the “Lemon Law Rights Period”.

            Notwithstanding the above, you may still have a UCC or a Magnuson Moss Warranty claim, but you would always prefer to preserve your lemon law claim as well.

            There are very few Alabama cases which actually quote the Alabama Lemon Law.  In fact, there are only four (4) cases which refer to the Alabama Lemon Law Statute.  Those cases are:

            1.         Ex Parte Perry, 744 So.2d 859 (Ala. 1999) (this case simply mentions the statute and does not stand for any legal proposition regarding the lemon law);

            2.         Carter V. Chrysler Corp., 743 So.2d 456 (Ala. Civ. App. 1998) (this case held that the manufacturer must brand the title of the vehicle which has been repurchased under the lemon law with the words “THIS VEHICLE WAS RETURNED TO THE MANUFACTURER BECAUSE IT DID NOT CONFORM TO ITS WARRANTY” pursuant to § 8-20A-4);

            3.         Tucker v. General Motors Corp., 769 So.2d 895 (Ala. Civ. App. 1998) (§ 8-20A-2(a) is mentioned in a footnote regarding the nonconforming condition and delivering the vehicle to the manufacturer, its agent, or its authorized dealer); and

            4.         Lipham v. General Motors Corp., 665 So.2d 190 (Ala. 1995) (this case involved the definition of “consumer” with respect to whether the vehicle was used for personal, family or household purposes pursuant to §§ 8-20A-1(1), 2, and 3 because the use of the vehicle for business purposes is not governed by the Lemon Law).

            Consequently, a court could rule that constructive notice, i.e.:  telling the dealer there was a problem, satisfies the notice requirement.  However, you would be foolish to rely on this potential ruling from a judge.  You would be much better off showing the judge a copy of your notice of non-conforming condition along with a return receipt signed by the manufacturer’s representative.  At that point, there can be no argument about whether notice was given.

5.    Failing to include the proper information in the letter of non-conforming condition.

            A consumer must give “Notice of a Nonconforming Condition” by certified United States mail to the manufacturer and demand correction or repair of the nonconforming condition. The law defines the “Notice of a Nonconforming Condition” as a written statement which shall be delivered to the manufacturer and which shall describe the subject motor vehicle, the nonconforming condition, and shall describe all previous attempts to correct such nonconforming condition by identifying the person, firm or corporation who or which made such attempt, and the time when such attempt was made.

           A “Nonconforming Condition” is defined as any condition of a motor vehicle which shall not be in conformity with the terms of any express warranty issued by the manufacturer to a consumer and which: (i) significantly impairs the use, value or safety of the motor vehicle and (ii) occurs or arises solely in the course of the ordinary use of the motor vehicle, and which does not arise or occur as a result of abuse, neglect, modification, or alteration of the motor vehicle not authorized by the manufacturer, nor from any accident or other damage to the motor vehicle which occurs or arises after such motor vehicle was delivered by an authorized dealer to the consumer. 

            The best way to handle this is by using the service reports.  Typically, the service reports contain all of the information you need to include in the notice.  We usually try to include:  (1) the make, model, and year of the vehicle; (2) the vehicle identification number; (3) the nonconforming condition, i.e.:  the problems with the vehicle; (4) the dates any service attempts were made on the vehicle; and (5) the name of the dealer which attempted said service.  If you fail to include all of the information, your notice could be defective and prevent you from successfully prosecuting your lemon law claim.

6.    Continuing to take the vehicle in after the third attempt at repair.

            If your car has been repaired for the same non-conforming condition three times, you should not let the dealer make another attempt at a repair until you have given the manufacturer Notice of Non-conforming Condition.  At that time, the manufacturer will let you know when and where the final repair attempt will be conducted.  This will be the FINAL repair attempt.  However, giving the dealer four, five, or six attempts at repairing the problem will arguably prolong your agony. 

             The statute states you must give the manufacturer Notice of Non-conforming Condition, and the statute defines what that means.  As mentioned above, the Notice must provide the manufacturer with a final repair attempt, and therefore, even though you have given the “dealer” five or six attempts, the manufacturer will argue that they are entitled to a final repair attempt.  Maybe a court will rule that such a final repair attempt was already provided because you took the car in more than three times.  However, such a ruling is very unlikely.  And just as above with the non-conforming condition, wouldn’t it be better if you could show the Judge your letter, the return receipt, the three repair attempts, and the clearly worded request for a FINAL repair attempt?

            When in doubt, ALWAYS follow the letter of the law.  Doing this leaves no room for interpretation.  When you leave room for interpretation, you are giving the judge a way out.  When judges have discretion and there is room for interpretation, you are gambling that the judge will agree with you.  However, when you follow the letter of the law, you are protecting yourself, and if a judge rules against you, you have provided yourself with good grounds for an appeal.

7.    Not allowing a final repair attempt and assuming the dealer is the manufacturer.

            As discussed, the manufacturer is entitled to a final repair attempt.  If the dealer is given several attempts at repairing your car, you cannot use that fact against the manufacturer.  You still MUST give the manufacturer a final attempt to repair the vehicle.  This is true under the Magnuson Moss Warranty Act as well (the Magnuson Moss Warranty Act is a federal law which essentially mirrors state warranty laws under the Uniform Commercial Code (UCC)).

             Again, if you don’t give the manufacturer that final repair attempt, you are leaving the case open for the judge’s discretion.  In such a case, a judge could throw your case out on a technicality – the failure to provide the manufacturer with a final opportunity to correct the defect.  This is why it is best to consult an attorney early on in the process.  Once the same problem has occurred in your vehicle and the dealer has serviced the problem, on three separate occasions, you should consult an attorney to carry you through the rest of the process.

           Why?  Will it cost me a fortune?  You can’t afford an attorney?  How do you know?  Most attorneys will provide you with a free consultation.  Furthermore, think about this.  Suppose ten people have Ford F-250 trucks with a vibration problem.  Suppose nine of the ten write Ford a letter about the problem.  And, suppose the tenth one has an attorney write Ford a letter.  Which one do you think will get the most serious response?  Remember, the longer the manufacturer puts you off, the less time you have to bring a claim (there is a time limit for bringing such a claim).  There are benefits to hiring an attorney, and typically, the attorney ends up being paid by the manufacturer.

Conclusion

            Clearly, there are many technical procedures which must be followed with respect to the Alabama Lemon Law.  The statute must be read and followed very carefully in order to preserve any claims you have.  In addition, you must consider these matters carefully as you are going through the process.  When you first have a problem with your new car, you need to consider that it may be a defect which cannot be fixed.  If you document the problems carefully from the beginning, you put yourself in a much better position down the line to win a potential Lemon Law claim.  You also put your attorney in a better position to advocate on your behalf against the manufacturer.

             If you need assistance with such a claim, feel free to contact the attorneys at Lewis & McAtee, P.C.  We have been handling warranty claims, product defect cases, personal injuries, and wrongful death claims for years, and we will be glad to assist you with the legal problems you may have.  We hope this report has been informative, and please call us if you have any questions or comments regarding the same.

Lewis & McAtee, P.C.
Concord Center
Suite 810
2100 Third Avenue North
Birmingham, Alabama 35203
(205) 254-3927 – office
(888) 295-7409 – toll free

http://www.lewismcatee.com/
http://www.allemonlaw.com/

Arbitration – Winds of Change

July 11, 2007

Apparently, some public officials and, more importantly, the public are beginning to understand the effects arbitration is having on consumer transactions.  As a result, U.S. Senator Russ Feingold (D-WI) and U.S. Representative Hank Johnson (D-GA) will introduce the Arbitration Fairness Act of 2007, comprehensive legislation to ensure Americans are not forced into mandatory arbitration agreements in employment, consumer, franchise or civil rights disputes.  We hope readers of this blog will contact their representatives to tell them this bill should be supported.  Below is a draft of the proposed bill:

The Arbitration Fairness Act of 2007
Section by Section Analysis 

When Congress enacted the Federal Arbitration Act (“FAA”), its goal was to allow an alternative forum for parties on equal footing to resolve their disputes.  Yet a series of court decisions moved the law away from its original intent and opened the door for arbitration to be used to deprive ordinary citizens in employment, consumer, and franchise disputes of their constitutional right to use the civil justice system.   

The Arbitration Fairness Act of 2007, introduced in the Senate by Sen. Russ Feingold (D-WI) and in the House by Rep. Hank Johnson (D-GA), reflects the FAA’s original intent by requiring that agreements to arbitrate employment, consumer, franchise, or civil rights disputes be made after the dispute has arisen.  The Act does not prohibit arbitration, but it will prevent a party with greater bargaining power from forcing individuals into arbitration through a contract entered into prior to a dispute arising.  It will ensure that citizens have a true choice between arbitration and the traditional civil court system.   

Sec. 1:      Short Title: the “Arbitration Fairness Act of 2007”  

Sec. 2:      Findings:  This section details how the law has moved away from the original intent of the Federal Arbitration Act and has now exposed growing numbers of individual consumers and employees to mandatory arbitration agreements.  It also discusses the ways in which mandatory arbitration systems are skewed in favor of powerful, corporate, repeat players.   

Sec. 3:      Definitions:  This section amends section 1 of the FAA (9 U.S.C. § 1) to include specific definitions of “employment dispute,” “consumer dispute,” and “franchise dispute,” which are covered by the Act.  An employment dispute is any dispute between an employer and employee arising out of the relationship as defined by the Fair Labor Standards Act.  A consumer dispute is a dispute between an individual person who seeks or acquires property, services, money, or credit for non-business purposes and the seller or provider of those goods or services.  A franchise dispute is a dispute between a franchisor and franchisee arising out of or relating to the contract establishing the franchise. 

Sec. 4:      Validity and Enforceability:  This section amends section 2 of the FAA (9 U.S.C. § 2) to establish that agreements to arbitrate employment, consumer, or franchise disputes will not be enforceable if they are entered before the actual dispute arises.  It extends this rule to disputes arising under civil rights statutes and statutes regulating contracts or transactions between parties of unequal bargaining power.  This section also states that disputes as to whether the Act applies shall be resolved by the court, rather than through arbitration.  Finally, the section clarifies that the Act does not apply to collective bargaining agreements. 

Sec. 5:      Effective Date:  The Act shall apply to claims and disputes arising on or after the date of enactment. 


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