Documenting Your Lemon Law Claim
If you believe you have purchased a “lemon” vehicle, and that your state’s lemon law may apply, it is important to be vigilant when seeking repairs, and keep good records. While new car dealers like return business and will usually do their best to repair a car to satisfy their customer, dealers and manufacturers are very aware of lemon laws and try to avoid their application. That may include playing games with the records to make it seem like lemon laws do not apply.
Please note that even if you do not end up being able to make a lemon law claim, careful documentation may permit you to bring a breach of warranty claim, or to get relief under a consumer protection law. Documentation is crucial. Without proper documentation, even the best claim can fail.
Keep a record of any trouble with your vehicle, starting with the very first repair. Make a note of the odometer reading when your car goes in for repairs, and the date and time when you take the car in and get it back. When you talk to service people, or the manufacturer’s customer service representatives, record the date, the person’s name, and make a note of what they said. Get copies of any warranty repair orders, and get an invoice for every car repair (even when there is no charge for the repair). If the dealership or manufacturer won’t give you paperwork, record that fact.
If you have a recurring problem with your car, make sure that it is noted on your request for repairs that it is the same problem you had before. Don’t let the dealership claim that you in fact had several different problems with your car to avoid the application of the law, based upon what they write on the repair records.
Make sure you also maintain your vehicle, and engage in appropriate use. Keep copies of your maintenance records. Manufacturers may try to avoid responsibility for lemon vehicles by blaming the problems on the purchaser.
Ask for Technical Service Bulletins (TSB’s) relating to your car. Car dealers will not ordinarily provide copies of TSB’s unless they are requested. However, TSB’s can provide valuable information about common problems with a particular make and year of vehicle, and how they are best repaired.
Recall also that you must give the manufacturer the opportunity, and typically repeated opportunities, to repair the problem with your car. You may be angry with the manufacturer for selling you a “lemon” car, but if you wish to make a lemon law claim you must let the manufacturer try to fix the problem. If you don’t let the manufacturer attempt to repair the vehicle, you will lose your lemon law protections.
If you send letters to the dealer or manufacturer, or receive letters from them, keep a copy in your file. When you make a claim with the manufacturer or apply for arbitration, make sure you keep a copy of any letters or forms you submit.
Oregon Court of Appeals Reports (Court Case)
LILES v. DAMON CORP., A129113 (Or.App. 12-27-2006) DALE L.
LILES and KAREN MARIE LILES, Respondents, v. DAMON
CORPORATION, an Indiana corporation, Appellant. 03-3086;
A129113. Oregon Court of Appeals. Argued and submitted
August 21, 2006. FILED: December 27, 2006.
Appeal from Circuit Court, Linn County. John A. McCormick,
Judge.
William A. Drew argued the cause for appellant. With him on
the opening brief was Elliott, Ostrander & Preston, P.C.
With him on the reply brief were John D. Ostrander and
Elliott, Ostrander & Preston, P.C.
Gary E. Norman argued the cause and filed the brief for
respondents.
Before Linder, Presiding Judge, and Brewer, Chief Judge,
and Barron, Judge pro tempore. [fn*]
[fn*] Barron, J. pro tempore, vice Ceniceros, S. J.
BARRON, J. pro tempore.
Reversed.
BARRON, Judge pro tempore.
Defendant manufacturer appeals a judgment granting
plaintiffs recovery under Oregon’s Lemon Law, ORS 646.315 to
646.375, after a trial to the court. At trial, defendant
moved for what was the equivalent of a motion for judgment
of dismissal, challenging the sufficiency of the evidence.
See Lieberfreund v. Gregory, 206 Or App 484, 490 n 5, 136
P3d 1207 (2006). The trial court denied the motion. The sole
issue on appeal is whether the trial court correctly
determined that plaintiffs gave defendant an opportunity to
correct the defects in their motor home, as required by ORS
646.325, before filing their complaint. We reverse.
The facts are straightforward and undisputed. On December
30, 2002, plaintiffs purchased a new motor home manufactured
by defendant, which is located in Indiana. From the time
that plaintiffs took possession of the motor home, water
continuously leaked into it. Plaintiffs took the motor home
to the dealer for repair of the leaks on several occasions,
but the dealer failed to successfully fix the leaks.
Plaintiffs also had several phone conversations with
representatives of defendant, including the president of
defendant, but again the leaks were not corrected. On
December 23, 2003, plaintiffs’ attorney mailed a letter to
defendant notifying it of the leaks and the failed attempts
to correct the leaks. In the letter, plaintiffs asked
defendant to replace the vehicle in accordance with ORS
646.335.[fn1] The letter did not reach defendant until
December 29, 2003, and plaintiffs filed their complaint the
next day.[fn2] The trial court entered a judgment in favor
of plaintiffs, rejecting defendant’s contention that it did
not have an opportunity to correct the defect before
plaintiffs filed the action.
On appeal, defendant renews its argument that, because
plaintiffs filed their complaint only one day after
defendant received plaintiffs’ letter concerning the leaks,
plaintiffs did not provide an opportunity for defendant to
correct the leaking problem, as required by the plain
language of ORS 646.325. In response, plaintiffs make three
contentions: (1) the language of the statute does not
require that the opportunity to correct a defect must come
after the consumer gives written notice to the manufacturer;
(2) under Johnson v. Star Machinery Co., 270 Or 694, 530 P2d
53 (1974), we should decide that the notice requirement of
ORS 646.325(3) is superfluous and a nullity because it
conflicts with the clear intent of the legislature to
protect the consumer who buys a “lemon”; and (3) under Brown
v. Portland School Dist. #1, 291 Or 77, 628 P2d 1183 (1981),
plaintiffs substantially complied with the notice
requirements by taking the vehicle to an authorized dealer
for repairs several times and by having several phone
conversations with defendant’s representatives before the
December 23, 2003, letter was sent.
Whether defendant had an opportunity, within the meaning of
ORS 646.325(3), to correct the leaking problem presents us
with an issue of statutory construction. Under the familiar
framework set out in PGE v. Bureau of Labor and Industries,
317 Or 606, 859 P2d 1143 (1993), we first look to the text
and context of a statute, because the statute’s wording “is
the best evidence of the legislature’s intent.” Id. at 610.
If the legislature’s intent is not clear from the text and
context inquiry, we then look to the legislative history of
the statute. Id. at 611-12. We consider the legislative
history along with the text and context to determine whether
all of those together make the legislative intent clear. Id.
at 612. If the legislature’s intent then becomes clear, our
inquiry is at an end. Id.
ORS 646.325 provides that three requirements must be met to
warrant a remedy of replacement under ORS 646.335:
“(1) A new motor vehicle does not conform to applicable
manufacturer’s express warranties;
“(2) The consumer reports each nonconformity to the
manufacturer, its agent or its authorized dealer, for the
purpose of repair or correction, during the period of one
year following the date of original delivery of the motor
vehicle to the consumer or during the period ending on the
date on which the mileage on the motor vehicle reaches
12,000 miles, whichever period ends earlier; and
“(3) The manufacturer has received direct written
notification from or on behalf of the consumer and has had
an opportunity to correct the alleged defect.
`Notification’ under this subsection includes, but is not
limited to, a request by the consumer for an informal
dispute settlement procedure under ORS 646.355.”
The requirement under subsection (3) that the manufacturer
receive “direct written notification” and have an
“opportunity to correct” is the requirement at issue here.
In particular, we must determine whether an “opportunity to
correct” must come after the “direct written notification”
is received.
We previously construed ORS 646.325(3) in Pavel v.
Winnebago Industries, Inc., 127 Or App 16, 870 P2d 856
(1994), a case that also involved the purchase of a motor
home. In Pavel, the plaintiffs’ motor home was in repair
shops for more than 100 days after delivery, but the
plaintiffs never gave the defendant any advance written
notice under ORS 646.325(3) that a particular defect had to
be corrected. The defendant contended that giving a written
notice was a condition precedent to filing an action in
court. More specifically, the defendant argued that ORS
646.325(3) was unambiguous and that the plaintiffs did not
provide the proper “prior written notification and
opportunity to correct.” Pavel, 127 Or App at 19. The
plaintiffs, making an argument similar to plaintiffs’
argument in this case, asserted that an interpretation of
the statute requiring “an opportunity to correct” and “prior
written notice” when the alleged nonconformity is based on a
series of repairs totaling 30 or more business days is
clearly contrary to the remedial purpose of the statute.
We disagreed with the plaintiffs’ assertion. Although we
did not cite PGE, we determined that ORS 646.325(3) was
unambiguous under those facts and that the unambiguous
language “can be literally applied consistently with the
other provisions of the statutory scheme.” Pavel, 127 Or
App at 20. We rejected the plaintiffs’ assumption that the
objective of the statute is solely to provide consumers with
replacement vehicles or refunds. Id. To the contrary, we
noted that ORS 646.325(3) also “contemplates an opportunity
for the manufacturer to remedy problems with a vehicle.” Id.
In Pavel we did not decide whether the written notice to
the manufacturer had to come before the “opportunity to
correct the alleged defect.” That is the inquiry we must now
make by first examining the text of ORS 646.325(3), as
required by PGE, 317 Or at 610. Although we determined in
Pavel that the language of ORS 646.325(3) was unambiguous
for purposes of the issue presented in that case, the
legislature’s intent as to the chronological requirements in
the statute is less clear. See Harlow v. Allstate Ins. Co.,
177 Or App 122, 130, 33 P3d 363 (2001) (a statute can be
unambiguous in one context and ambiguous in another). ORS
646.325(3) states that “[t]he manufacturer [must] receive[]
direct written notification from or on behalf of the
consumer and ha[ve] had an opportunity to correct the
alleged defect.” A plain reading of the text does not
clearly indicate that the legislature intended that an
opportunity to correct come after the written notification
because the conjunction “and” only suggests that both
requirements must be met before a consumer pursues the
extraordinary remedies of the Lemon Law.[fn3]
As part of our textual analysis, we also look to the
context of the statutory language at issue. In looking at
the context, we can consider earlier versions of the
statute. SAIF v. Walker, 330 Or 102, 108-09, 996 P2d 979
(2000). The first version of ORS 646.325 was enacted in
1983. Or Laws 1983, ch 469, § 2. It consisted of
subsections (1) and (2) only. After complying with those
subsections, a consumer could pursue the remedy allowed
under the Lemon Law. Subsection (3) was enacted in 1987 and
added a third requirement that must be met before a consumer
could pursue a remedy under the Lemon Law. Or Laws 1987, ch
476, § 6. As noted, subsection (2) requires that the
buyer report the nonconformity to the manufacturer, its
agent, or its authorized dealer for the purpose of repair
within one year or 12,000 miles of delivery, whichever
occurs earlier. Subsection (3) is directed solely at the
manufacturer and requires written notification and an
opportunity to cure. We must construe the provisions to
“give effect to all.” ORS 174.010. It appears that the
provisions provide for a natural progression. First, the
vehicle does not conform to the warranty; second, the
consumer reports — not necessarily in writing
— the defect to the manufacturer or dealer; and
third, the consumer gives a written notification, with the
manufacturer then having a final opportunity to cure the
defect.
Our contextual inquiry may also include examining related
statutes. PGE, 317 Or at 611. Under ORS 646.361, which was
enacted at the same time as ORS 646.325(3), the
manufacturer, and not the dealer, is solely subject to the
extraordinary remedies of the Lemon Law in the event of a
successful Lemon Law claim. Specifically, ORS 646.361(1)
states that nothing in the Lemon Law statutes “creates a
cause of action by a consumer against a vehicle dealer.”
Subsection (2) of that statute goes on to state that a
manufacturer cannot “join a dealer as a party” or “try to
collect from a dealer any damages assessed against the
manufacturer.” Because that statute makes clear that only
the manufacturer is subject to the Lemon Law remedies,
interpreting ORS 646.325(3) as allowing the manufacturer a
final opportunity to correct a defect after it has received
written notice from the consumer of that defect would be
consistent with the manufacturer’s ultimate responsibility.
For example, if, as plaintiffs urge, there is no
chronological requirement in the statute, a manufacturer who
was aware of a defect, but was unaware that it had not been
fixed, would still be subject to the Lemon Law without
having a final chance to correct the defect. This case
illustrates that problem. It appears that the last contact
between defendant and plaintiffs occurred when defendant
authorized plaintiffs to take the motor home to a repair
shop near them. There is no indication that defendant knew
that the repair shop failed to correct the leaks. To the
contrary, plaintiffs indicated that their next step after
leaving the repair shop was to visit an attorney, who then
sent the December 23, 2003, letter. As noted, plaintiffs
filed their Lemon Law claim the day after defendant received
that letter.
ORS 646.345(4) also sheds some light on whether the
legislature intended a chronological requirement in ORS
646.325(3). ORS 646.345(1), which was enacted as one of the
original provisions of the Lemon Law, provides that, if the
same defect is subject to repair at least four times and is
not corrected or the vehicle is out of service for at least
30 business days because of the defect, there is a
presumption that a reasonable number of attempts have been
undertaken to conform a motor vehicle to the applicable
manufacturer’s express warranties.[fn4] Subsection (4) of
that statute states, however, that “[i]n no event shall the
presumption * * * apply against a manufacturer unless the
manufacturer has received prior direct written notification
from or on behalf of the consumer and has had an opportunity
to cure the defect alleged.” In other words, before a
consumer can receive the benefit of the presumption, the
consumer must first notify the manufacturer directly, in
writing, about the defect that may require or has required
four or more repairs or may keep or has kept the vehicle out
of service for more than 30 business days, after which the
manufacturer has the opportunity to cure the present defect.
See Pavel, 127 Or App at 21. That demonstrates that the
opportunity to cure follows the written notice under ORS
646.345(4) and is suggestive that the same should be true in
relation to ORS 646.325(3) even though the former relates to
a presumption, without the benefit of which the consumer
could still prevail under the Lemon Law, and the latter to a
requirement that must be met to be entitled to a remedy
under the Lemon Law. The two provisions are consistent and
should be read together.[fn5]
Because the context at most suggests, albeit strongly, that
the legislature intended that the manufacturer have an
opportunity to cure after receiving written notice, and
because the actual text of ORS 646.325(3) is unclear as to
the chronological requirements of the “written notice” and
“opportunity to correct,” we find it appropriate to examine
the legislative history of the provision. As noted, ORS
646.325 was amended in 1987 to include subsection (3). Or
Laws 1987, ch 476, § 6. The amendment was introduced
in the House of Representatives by Representative George
Trahern, who proposed the addition of subsection (3) to
“clarif[y] that the manufacturer has at least one last
opportunity, if you will, to correct the alleged defect.”
Tape Recording, House Committee on Consumer and Business
Affairs, HB 2599, Mar 24, 1987, Tape 52, Side B (testimony
of Rep George Trahern).[fn6] Representative Trahern’s
characterization of the statute’s requirement to give the
manufacturer an opportunity to correct as “one last
opportunity” strongly suggests that the legislature intended
that the opportunity must come after the written notice. In
other words, even though a manufacturer might have had other
opportunities to correct a defect, the written notice
requirement of ORS 646.325(3) affords it one last chance to
correct before the consumer can pursue the extraordinary
remedies under ORS 646.335. As illustrated above, to read
the statute as plaintiff suggests — that is, that the
opportunity to correct does not have to follow the written
notice — would not allow a manufacturer, who was
aware of the defect, but unaware that it had not been
corrected, time to correct the defect and would defeat the
purpose of the written notice.
Plaintiffs’ arguments under Johnson and Brown, which are
pre-PGE cases,[fn7] are variations on their first argument.
Citing Johnson, 270 Or at 705-06,[fn8] plaintiffs argue that
giving effect to ORS 646.325(3) would defeat the purpose of
the statute. Specifically, they deem ORS 646.325(3) as
merely duplicative of the requirements of ORS 646.325(1)
(the vehicle does not conform to the manufacturer’s
warranty) and ORS 646.325(2) (the nonconformity is reported
to the manufacturer or its authorized dealer for the purpose
of repair). Such duplication, according to plaintiffs, means
that subsection (3) is superfluous and should be ignored
because to follow it would produce a result contrary to the
legislative intent to protect the consumer.[fn9] But, as did
the plaintiffs in Pavel, plaintiffs disregard the
legislative intent to give manufacturers one last
opportunity to remedy problems with a vehicle. Plaintiffs
may believe that ORS 646.325(3) is superfluous and leads to
an absurd result. But when both purposes are considered, as
articulated in Pavel, the statute is not superfluous, there
is no absurdity, and all aspects of the Lemon Law are given
effect. Further, we are not permitted to ignore words
written by the legislature as plaintiffs argue Johnson
allows us to do. To the contrary, in construing statutes, we
cannot “insert what has been omitted, or * * * omit what has
been inserted.” ORS 174.010.
Plaintiffs’ final argument would also require us to ignore
the language and the dual purposes of ORS 646.325.
Plaintiffs argue that they substantially, and thus
satisfactorily, complied with the notice requirements of ORS
646.325 by taking the vehicle to an authorized dealer for
repairs several times and by having several phone
conversations with defendant’s representatives before they
sent a letter to defendant. They contend that Brown supports
that assertion. In Brown, the Supreme Court determined that
the plaintiffs’ service of a tort claims notice to two
public bodies by first-class mail contrary to the Tort
Claims Act, which, at the time, required that notice be sent
by certified mail under ORS 30.275, was valid despite the
technical defect. Brown, 291 Or at 82-83. The court stated
that “[t]he sufficiency of the notice given must be
determined with the object of the statute in mind and
technically deficient claims should not be barred where the
purpose of the statute is served.” Id at 81. Brown, however,
is inapposite because this case does not involve a mere
technical defect. As discussed, the statutory scheme in the
Lemon Law has two purposes, one of which is protection of
the consumer, and the other of which, as contained in ORS
646.325(3), is to give the manufacturer an opportunity to
remedy a defect. The latter purpose was not served by
plaintiffs’ filing of their complaint one day after
defendant received the written notice.
Plaintiffs believe that, given their view of the purpose of
the Lemon Law, the notice requirements of ORS 646.325(3) are
“met if the manufacturer has been provided the statutorily
required opportunity to cure the defect.” According to
plaintiffs, by orally contacting representatives of
defendant[fn10] and by bringing the motor home to the dealer
for repairs, plaintiffs sufficiently notified defendant of
the defect, and thus the “goal” of the statute was met. In
other words, plaintiffs want us to view ORS 646.325(3) as an
actual notice statute. But the legislature did not provide
for actual notice when it enacted ORS 646.325(3),[fn11] and
we cannot write an actual notice provision into the
statute.[fn12] See ORS 174.010; PGE, 317 Or at 610. Instead,
ORS 646.325(3) sets out requirements that must be met before
seeking a remedy under the Lemon Law. As we have noted
above, the statute requires plaintiffs to provide written
notice to defendant, followed by an opportunity to cure the
defects. Plaintiffs did not provide defendant with such an
opportunity after their written notice.
Reversed.
[fn1] ORS 646.335 provides, in part:
“(1) If the manufacturer or its agents or authorized
dealers are unable to conform the motor vehicle to any
applicable manufacturer’s express warranty by repairing or
correcting any defect or condition that substantially
impairs the use, market value or safety of the motor
vehicle to the consumer after a reasonable number of
attempts, the manufacturer shall:
“(a) Replace the motor vehicle with a new motor
vehicle[.]”
[fn2] Plaintiffs did so because they mistakenly believed
that there was a one-year statute of limitations from the
date of delivery to bring a claim under the Lemon Law. In
fact, under ORS 646.365, plaintiffs had one year beyond
whichever of the following periods ends earlier: the period
ending on the date on which the mileage reached 12,000 miles
or one year following delivery of the vehicle to the
consumer.
[fn3] It is worth noting, however, that a construction of
that provision allowing satisfaction of its requirements if
an opportunity to correct was presented before written
notice was given seems to run contrary to one of the two
purposes of the Lemon Law: to give the manufacturer an
opportunity to remedy problems with a vehicle.
[fn4] ORS 646.335(1) provides that, if the manufacturer
cannot conform the vehicle to express warranties through
repairs or corrections of defects or conditions “after a
reasonable number of attempts,” it shall replace the vehicle
or accept its return and refund the price paid.
[fn5] Although we did not explicitly state in Pavel that ORS
646.325(3) requires written notice before an opportunity to
cure, an examination of that opinion suggests that we
assumed as much, perhaps because a chronological progression
is the more natural reading of the statute. See 127 Or App
at 21.
[fn6] The views of a single legislator, although entitled to
no weight when expressed in relation to laws already
enacted, can shed light on a new enactment, Karjalainen v.
Curtis Johnston & Pennywise, Inc., 208 Or App 674, 683, ___
P3d ___ (2006), and can be persuasive as to the meaning of a
bill, Baccelleri v. Hyster Co., 287 Or 3, 11, 597 P2d 351
(1979). Representative Trahern’s comments were made during
testimony before a House committee on a new enactment, an
amendment to ORS 646.325, and there is nothing in the
legislative history to contradict the view he expressed.
[fn7] The fact that a case predates PGE does not mean that
its interpretation of the statute is automatically
disregarded. See Bergerson v. Salem-Keizer School District,
341 Or 401, 414 n 7, 144 P3d 918 (2006). Such cases may be
considered where the prior interpretation has become part of
the statute, see S-W Floor Cover Shop v. Natl. Council on
Comp. Ins., 318 Or 614, 622, 872 P2d 1 (1994), or where a
PGE analysis confirms the prior interpretation; see Keller
v. SAIF, 175 Or App 78, 81, 27 P3d 1064 (2001).
[fn8] In Johnson, the Oregon Supreme Court stated that, “if
the literal import of the words [of a statute] is so at
variance with the apparent policy of the legislation as a
whole as to bring about an unreasonable result, the literal
interpretation must give way and the court must look beyond
the words of the act.” 270 Or at 704.
[fn9] Plaintiffs also argue that the committee members
before whom Representative Trahern was testifying “weren’t
paying attention” when subsection (3) was added and that it
was only added “in an attempt to make it harder for the
consumer to gain the legislatively-intended benefits of the
lemon law.” We reject both arguments because nothing in the
record supports them, and they merely reflect plaintiffs’
disagreement with the policy choice made by the legislature.
Whether the legislature made a wise or unwise policy
decision in that regard is not our place to decide. See
Wheaton v. Kulongoski, 209 Or App 355, 362, ___ P3d ___
(2006).
[fn10] The oral communications plaintiffs had with
defendant’s representatives are irrelevant because the
statute requires written notice. See Johnson v. Swaim, 209
Or App 341, 345-46, ___ P3d ___ (2006) (oral communications
before trial advising defendant of amount of claim in
regards to attorney fee request at trial not relevant
because statute required amount of claim to be in writing).
[fn11] The legislature knows how to write an actual notice
statute. For example, ORS 30.275 now, as opposed to when
Brown was decided, allows a tort claims notice to a public
body by formal notice (personal service or service by mail),
actual notice, commencement of an action, or payment of all
or part of a claim by the public body involved.
[fn12] There is some question as to how (or whether) cases
like Johnson and Brown, which were decided before PGE and
allowed courts to add or subtract words from statutes under
some circumstances, fit into the PGE framework for
construing statutes. According to Judge Landau in his
concurring opinion in Clackamas County v. Gay, 146 Or App
706, 712, 934 P2d 551 (1997), “[W]e should discard the
notion that courts have the authority to rewrite statutes.
To begin with, although the court has not expressly
overruled Johnson or disavowed its prior decisions in which
it rewrote the language of various statutes, those cases
implicitly have been superseded by the court’s most recent
template for construing statutes, described in PGE[.]” Judge
Landau repeated his concerns in another concurring opinion
in Young v. State of Oregon, 161 Or App 32, 40-42, 983 P2d
1044 (1999), where Judge Haselton also produced a concurring
opinion disagreeing with Judge Landau’s view of the
continuing validity of Johnson. Judge Haselton wrote:
“With PGE, as with any other formula, there must be
limits. Legislative draftsmanship is not a science, and
neither is statutory construction. When a methodology that
purports to effectuate legislative intent inverts that
intent, something is seriously wrong. The methodology must
be reexamined and modified or discarded.
” * * * If we are to live, sensibly, with PGE, the
`absurd results’ principle must be available at the
so-called `first level,’ not the `third level,’ of the
analysis. That is, there must be an escape hatch for those
rare circumstances in which any reasonable person would
conclude, notwithstanding unambiguous text, that the
legislature could not possibly have intended the result
that the text ostensibly yields.”
161 Or App at 42-43 (footnotes omitted).