What if you are experiencing a vehicle defect that only happens once in a while? I recently represented a Michigan consumer whose vehicle sometimes wouldn't start and left him stranded on the highway on several occasions. Sometimes the vehicle would start back up after a few minutes, but on another occasion, it had to be towed to the dealer service department. But when the service department inspected the vehicle, they could not duplicate the problem or find any defects. No codes, no stalling, nothing.
While intermittent defects are very frustrating, you should never give up the fight to prove your case. There are several strategies that you can use to expose the problem:
Document the Problem
If you have an engine light that goes on and off, excessive noises, (e.g. brakes, engine, transmission, rear end), or other defects that can be seen or heard, document them. Take photos, record the sound, get witnesses or show the dealer service department. The best way to prove a defect that comes and goes is to get some evidence. Photos, video and sound recordings will go a long way in court to rebut the manufacturer or dealer assertion that the problem cannot be found.
Keep Taking the Vehicle to the Shop
Take your vehicle back to the service department over and over again. While this strategy can be inconvenient and interfere with your life and schedule, the repeated sight of your vehicle in the service department may cause the dealer to go to the necessary extreme to locate the defect. The dealer may conduct an extensive test drive, utilize advanced diagnostic equipment and even contact the engineer from the manufacturer. At some point your dealer may refuse to continue repair attempts. If this occurs, consider taking it to a different authorized dealer. The more eyes on the problem, the more likely its discovery.
Hire an Expert
If you are not able to photograph or record the defect, and the dealer can't find it, the next best option is to hire an expert to conduct a test drive and inspection. A third-party certified mechanic who can verify the defect you are experiencing is very persuasive in court and serves to cut off any argument by the defendant that the defect does not exist.
The Law is on your Side
The Michigan Court of Appeals recently determined:
Defendants' reliance on a technician's testimony, where the technician stated that on May 5, 2016, when he inspected the vehicle, “all systems operated as designed,” is misplaced. Plaintiff explained that the problem was intermittent (“[s]ometimes it starts, sometimes it does not”). Thus, the fact that the problem was not apparent on that particular day does not establish that the vehicle was actually free from defects, especially when plaintiff stated in an affidavit that the problem manifested itself again after May 2016. Moreover, even the technician admitted that “[d]iagnosing and solving a stalling complaint is complex in nature because of the multiple variables.”
See Gomez v. Mercedez-Benz USA, LLC, Mich. Ct. App. No. 335661, (Feb. 20, 2018). (The Alexander Law Firm represented Mr. Gomez in this case and won the appeal. The case was later settled)
In sum, automobiles are complex pieces of machinery encompassing thousands of parts and components. It is not unusual for you to experience defects or problems with your vehicle that come and go. This is normal, and it is not something you should worry about in pursuing your Lemon Law or breach of warranty claims.
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