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Today I am going to do something a little different and talk about a recent personal experience with a consumer product – not a lemon car, not a big-ticket purchase, but an inexpensive electric toothbrush.

We use toothbrushes everyday and normally do not spend much time thinking about their design or history. We do not know when humans first started using tools to clean their teeth, but there is evidence of the use of “chewing sticks” by ancient Babylonians as far back as 3500 BC. The first appearance of such devices in literature is around 1600 BC in China. Following on this long history of oral hygiene, in 15th century China, boar’s hairs were fixed in bamboo to make the first toothbrush. The 19th century brought the mass production of the toothbrush in America, then modified in the 1930’s to include nylon bristles. The electric toothbrush made its appearance on the US markets in the 1960’s with continuing evolution up to the present day.

So, how does this tie in with my experience? A few months back, I saw a battery powered Crest Spin brush on sale at the grocery store in Lewisville, TX. I do not remember the exact price, but it was around $5. If you consider what electric and battery powered toothbrushes cost a few years ago (and even what expensive models go for today), this is incredibly inexpensive – especially since batteries are included.

After a month or two of use, the batteries died and I replaced them. Shortly thereafter, I noticed a loss of powered and checked the battery compartment. I found that, despite having a gasket, water had leaked into the compartment and a battery had corroded a bit as well as one of the contacts.
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Regardless of what sort of vehicle we have, whether it is new or old, a great car or a lemon, most of us speed. Some of the time we go with the traffic flow, a few miles an hour over the speed limit and occasionally zip around considerably faster. It is almost inevitable that eventually we get pulled over for speeding and may get a ticket. Here in Dallas and the surrounding Fort Worth and Arlington areas, these tend to be for a few hundred dollars.

There are a few places where this behavior is much costlier. Back in July, the state of Virginia implemented a new law which dramatically increases what offenders will be assessed for many traffic infractions. This new “civil remedial fee” dwarfs the normal penalty. For example, going 20 mph over the speed limit is considered “reckless driving” and carries a $1000 civil penalty in addition to the regular fine. Other examples are a $300 fee for failing to stop at a stop sign, and a $300 fee if an in car DVD player is playing a movie and an “obscene video image” is seen from outside the vehicle. The state expects to raise between $65-$120 million.

In the case of Virginia, the state legislature is trying to fill the state’s coffers from the pockets of drivers. In contrast, the Finnish system for penalizing misbehaving drivers can result in even bigger fines, – recently a wealthy internet entrepreneur was fined $71,400 for driving 43 mph in a 25 mph zone – but the rationale is very different. In Finland, the idea is that a penalty should impact everyone equally.
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As a lemon law practice in Dallas, Texas, my office receive calls from potential clients with used or pre-owned lemon cars very often. The first question asked is whether the Texas lemon law applies to pre-own or used car cases. Unfortunately, the short answer to that question is that, generally, the Texas lemon law does not include used vehicles.

One exception to this rule is if the preowned vehicle is still covered under the car manufacturer’s existing warranty (and not the extended warranty), then the Texas Lemon Law “may” be used to force the manufacturer to repair the problem.

Specifically, section 2301.602 of the Texas Occupations Code dealing with the Regulation of Motor Vehicles and Transportation (better known as the “Texas Lemon Law”), only refers to “new motor vehicle(s).”

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Recently, a concerned consumer in Houston, Texas contacted my law office about a new truck he had recently purchased. He was concerned that his vehicle might be a lemon because he had never been able to obtain the mileage that was shown on the information sticker when he purchased it. He wanted to know if there was any recourse under the state (Texas) lemon laws or fraud statutes because his vehicle appeared to fail to live up to the advertised specifications.

Without determining the strength or validity of any possible legal claims arising from this situation, lets take a few minutes to look at how those fuel efficiency numbers are obtained and why they are there.

The Environmental Protection Agency (EPA), part of the federal government, requires that car manufactures test vehicles to determine their fuel consumption rate. Not every car produced is tested — only a representative vehicle for the specific model. Typically the vehicle tested is a prototype — before production is started. Some very large vehicles (as well as motorcycles) are currently exempt.

 
https://www.youtube.com/watch?v=9xdt7X-WFLk
 

Vehicles are tested during simulated driving in a laboratory environment. The car is placed on a dynamometer (rollers under the wheels). The force needed to turn the dynamometer can be varied, thereby simulating different environmental conditions (e.g. headwind, uphill etc). While the car is on the dynamometer, the exhaust from the engine is collected and the amount of carbon emitted is measured. This amount is used to calculate the amount of fuel that is being consumed. The car is “driven” through a series of “courses” that are designed to mimic different types of driving conditions. Examples of the routes can be found at the Fuel Economy site.
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Having a reliable vehicle to commute in the Dallas and Fort Worth area is essential. If you purchase a new car and it is defective, you may seek recourse under Lemon Laws or product warranty laws. However, the normal hope is that your new car will be perfect and last for years. Some people like to trade their car in every couple of years, but those who maintain their cars can save a great deal of money.

Consumer Reports writes that owners who keep their car for 15 years or 225,000 miles may save $31,000 compared to an owner who trades their car in every 5 years. Using the example of a Honda Civic and taking into account depreciation, taxes, fees, and insurance, an owner holding on to the car for 15 years would save $20,500. In addition to these savings, our hypothetical owner could make $10,300 by investing the money that would have been spent on new cars.

Consumer Reports also compiled a list of cars that are more likely to make it to 200,000 miles. Included in this list are many cars by Honda and Toyota (included are: Civic, Lexus ES, Lexus LS, Toyota 4Runner, Toyota Highlander, Toyota Land Cruiser). It also published a list of vehicles that were not such good bets to make it to 200K threshold. These included such popular (and pricey!) vehicles as the V8-powered Mercedes-Benz M-class, Mercedes-Benz SL, BMW 7-series, Infiniti QX56, Jaguar X-type, V8-powered Volkswagen Touareg, and the V6-powered Volvo XC90.

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In Texas, most car manufacturers participate in the Better Business Bureau (BBB) Lemon Law Arbitration program. Because this arbitration program does not award consumer attorney fees, a car owner may often find himself/herself going through the arbitration process on his or her own. If this is your situation, then below are some helpful suggestions on how to win your lemon law arbitration hearing.

* Please note that the information below and on this website are not legal advice. Contact a lemon law attorney for information that is specific to your situation. These suggestions are based on my experience with the BBB lemon law arbitration program here in Dallas, other locations may vary. If you are in Dallas or anywhere in Texas, then feel free to contact my office.

Tip number 1: Take a deep breathe. Most arbitrations are less formal than a trial. The arbitrator understands that this will be your first time.

Tip number 2: Bring the lemon vehicle to the hearing. The arbitrator will most likely want to test drive it to verify the problems with the vehicle. Make sure that the vehicle is clean so that the arbitrator does not get the impression that you are not following all maintenance schedules for the vehicle.
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Consider the danger of driving a vehicle and having it suddenly surge or lunge forward uncontrollably. This is what happened to several Toyota Prius owners recently who described their experience as an “uncontrollable acceleration.” One Prius owner stated that his lemon car “took off like a rocket.”

According to two articles, published by ConsumerAffairs.com, despite repeated complaints and requests for repair by these owners, Toyota service centers minimized the concern and insisted that this was nothing more than “a carpet jamming the accelerator pedal or driver error.”

If this has happened only once before, then this rationale may be a plausible reason for the abnormal defect. However, if there has been numerous complaints of similar problems by different Prius owners, then either Toyota or its technicians are careless in its diagnostics, or it seems, to me, that there may be intentional misrepresentations here. This is a products liability issue.

 
https://www.youtube.com/watch?v=KxKmvBJn27Q
 

If you happen to be in a similar situation with your lemon vehicle, it is important to do the following to preserve your rights as a consumer:

First, get everything in writing. For example, if the service manager indicates to you that this is merely driver error, then ask him to write that on the repair invoice. Thereafter, remove the carpet from your vehicle and see if the same problem reoccurs. If it does, then it would be difficult for the same service manager to negate his or her diagnostic error when you bring the vehicle in again for the same problem.
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Aside from the Texas lemon law, consumers of defective cars may file a claim against a car manufacturer through the Better Business Bureau’s (BBB) Lemon Law Arbitration Program. Usually, the BBB arbitration program is binding to the manufacturer and non-binding to the consumer.

This article will not discuss the benefits or disadvantages of participating in this program, as each case is different and it is best that you contact a lemon law attorney to determine which options may be best for you.

The first step in opening a claim with the BBB program is to determine if your car manufacturer participates in the arbitration program in your state. The second step is to file a claim with the BBB either by telephone or online at the BBB website.

After you have submitted your basic information, the BBB mails you a “Customer Claim Form.” You will need to complete the form and mail it back to the BBB within a certain amount of time. Thereafter, the BBB will use the information that you have provided to determine whether your vehicle is eligible to participate in the program or not – this is normally based on the current mileage on your vehicle and how long it has been since the time that you purchased the alleged lemon car.

The next step involves the BBB case handler contacting you and the manufacturer to informally resolve the “lemon dispute” on your car. Typically, the manufacturer will take on the position of denying your claim and possibly offering you an extended warranty. If you do not accept the extended warranty offer, then you may request or move to have your claim proceed to arbitration.
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We are going to take a break from discussing lemon cars and turn our attention to houses that are lemons. Much like in the case of vehicles, the construction and materials used in a new house can also be defective. However, unlike the case of vehicles, where there is a strong established history of state and federal law (e.g. Magnuson Moss Warranty Act), home buyers are treading in much less chartered waters.

New cars are simpler and more straightforward ‘devices’ than new homes are. Cars are massed produced and the specification for a particular make and model should be the same for each vehicle. A vehicle goes through extensive testing and validation during the design phase and the resulting vehicle is well defined. This information is used by the manufacture in marketing the vehicle and is available to the consumer in the form of specification sheets, technical service bulletins, and user’s manuals.

More and more, houses are also being mass-produced, either entirely – as in mobile homes or pre-fabricated homes, or in parts – as in the case of prefabricated trusses and sections. A new house has the potential for much more customization and variability than a new car does. While you have options as far as color and added features, many new homes are close to unique. An additional variable when considering a new home is the environment, including the land the house is built on, the amount of annual rain the area receives, the temperature range to which the house will be subjected to, and etc.

I do not want to give the impression that the materials and mechanics of house construction are not well understood. Humans have been building structures far longer than they have been building cars and there is a vast area of civil and mechanical engineering and material science dealing with the construction of structures.
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The owner of a Porsche with a defective spoiler deployment system was awarded $226,160 – plus he gets to keep the car. (Notice: I did not handle this case. Please read further).

This case involves Bruce Tammi’s 2003 Porsche 911 Turbo coupe. Mr Tammi originally leased his Porsche. During the first year of the lease, Tammi brought the vehicle in for repairs six times for a spoiler which would not properly deploy and retract. After making $57,458 in lease payments (and having experienced this problem) he opted to buy the car for $75,622.

Tammi, himself a lawyer, undertook lemon law proceedings against Porsche. At trial, in Federal court, Porsche unsuccessfully argued that the malfunctioning spoiler represented only an inconvenience and did not impair the use or operation of the vehicle. Tammi prevailed at trial and a jury awarded him $26,000. Judge Charles Clevert Jr, the U.S. District Court judge who presided over the trial, determined that the jury’s award was improper under Wisconsin’s lemon law. He changed the award to $266,160. Judge Clevert arrived at this figure by taking the total amount that Tammi had paid – both in lease payments and in purchase price, and doubling that value. Clevert stated that “Tammi’s receipt of double damages plus his retention of the car together do not seem unreasonably harsh in light of the purposes of the lemon law statute. If they appear too harsh for Porsche, Porsche should direct its concerns to the state legislature.”

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