Ohio's lemon law faces a Supreme test

By: Jim Braham

Within the next few months the Ohio Supreme Court is expected to rule on the first “Lemon Law” case to reach it since the consumer auto-purchase protection legislation was enacted 14 years ago.

These cases generally don’t reach any court.  They’re usually settled out of court by the manufacturer and consumer, a major reason why it’s not known how many lemon-law cases are ever filed, much less their disposition.  (The Center for Auto Safety in Washington currently estimates the number of automotive “lemons” at roughly 100,000 a year).

The basic issue in the current Ohio case, as defined by the state’s highest court is this: Is an automobile automatically a “lemon” under Ohio law if it’s out of service for 30 or more days for repairs?

Generally, Ohio’s law requires automakers to repair defects that affect the use, value, or safety of a new vehicle within the first 12 months or 18,000 miles, whichever comes first.  (Fit-and-finish problems don’t qualify.)  Used vehicles are not covered by the lemon law.

The automaker or dealer must be given a reasonable opportunity to fix the problem.  If it’s not corrected, you may be eligible for a full refund of purchase price (or lease payments) or a new vehicle.  You are covered by this law even if the problem is discovered late in the protection period (one year or 18,000 miles, whichever comes first) and the repair attempts extend beyond that.

In the case before the Supreme Court, the basic facts, not in dispute, are:

Fluid discovered

On Feb. 3, 1996, plaintiff Kimberly Royster of Cleveland leased a 1996 Toyota 4-Runner from Toyota-on-the-Heights dealership.  On or about that Nov. 7 she noticed red fluid on her garage floor and called the dealer, which picked up the sport- utility that day.  It turned out that the vehicle, which had 10,121 miles on it, had a head-gasket problem.

On or about Nov. 15 the dealer provided Royster with a Toyota Camry as a rental car at no charge.  She had the Camry until Dec. 31 when the dealer repaired the 4-Runner, also at no charge.  The reason for the month-and-a-half delay was that the dealer had to wait for a part, on back order, to arrive.

The manufacturer’s position (lemon laws hold the automaker, not dealer, responsible) is that the repair was successfully made and the 4-Runner had no mechanical problems or defects during the more than 15,000 miles driven following the repair.  Also, because she was provided with a loaner car most of the time her vehicle was out of service, Royster was not severely inconvenienced.

Irrelevant, says attorney

This argument is irrelevant, says Craig Kahn, Royster’s attorney.

“The vehicle was out of service 55 days.  The lemon law states that during the first year, if the vehicle has been out of service 30 days or more, the consumer is entitled to relief--to get the money back or a new vehicle.

“It’s not fair to make a consumer wait indefinitely to see whether the vehicle is ultimately going to be repaired.  And not having parts is the manufacturer’s fault, it doesn’t affect right to relief.  Also, a loaner generally isn’t a defense in any lemon law,” says the Cleveland attorney.

Repair conditions

Under Ohio’s lemon law, the manufacturer is presumed to have had a reasonable opportunity to repair the vehicle if any of these conditions apply:

• Three or more attempts have been made to repair one problem and then the problem occurs again.
• Vehicle has been in the shop 30 days or more during its first year or 18,000 miles.
• Eight or more attempts have been made to fix different problems that impair its use, value, or safety.
• One unsuccessful attempt has been made to fix a problem that could cause death or serious injury

Royster filed her lemon-law suit May 30, 1997, and on Nov. 4, 1998, Cuyahoga County Common Pleas Judge Mary Jane Boyle awarded Royster and the lienholder $38,000 plus $8,000 for attorney fees.

Toyota appealed and the Eight District Court of Appeals, in a 2-1 ruling, reversed the decision May 11 last year.  It essentially held that the 30-day deadline does not apply as long as the automaker eventually repairs the vehicle.

“Royster has not met her burden of showing that her vehicle remained defective, or that her use thereof was substantially impaired, after a reasonable number of attempts were made to replace the head gasket,” the court reasoned.

Ohio Attorney General Betty Montgomery challenged that decision, claiming it would “set a precedent by adding a condition to Ohio’s lemon law that would render the 30-day out-of-service provision useless.

The Supreme Court took the case June 12 last year and heard oral arguments Feb. 28 this year.

The Attorney General offers this advice should you suspect you have a lemon case:

Send a certified letter to the automaker’s zone office, whose address can be found in your owner’s manual or by asking the dealer.  In the letter, list your vehicle problems and attempts to correct them.  (Accurate record keeping is vital).  Indicate whether you want the vehicle replaced or a full refund.  Keep a copy of the letter for your records.  Claims must be brought within five years of original delivery of the vehicle.

(Published June, 2001.  The Ohio Motorist.  Reprinted with permission of The Ohio Motorist.)