By Susann Nordvik

If you have been in the unfortunate circumstance of having purchased a “lemon,” you may well have experienced a revolving door of trips to the dealership for various diagnostics and replacements.  However, to what extent is the manufacturer on the hook for the myriad losses and inconveniences that occur with your, perhaps short-term, ownership of a lemon?

The answer lies in the Virginia Motor Vehicle Warranty Enforcement Act, Virginia Code, § 59.1-207.9, et seq., otherwise known as the “lemon law.”  Under the lemon law, if your vehicle, after a reasonable number of attempts to repair,[1] still fails to “conform to the warranty,” i.e., does not meet proper standards or has an improperly functioning or non-functioning component, the manufacturer is required to either:  (1) Replace the vehicle with a comparable one; or, (2) accept the return of the vehicle for a full refund.[2]

Assuming that the manufacturer accepts return of the vehicle, the question then becomes what amount, precisely, constitutes a “refund”?  The statute provides for the return of the “full contract price, including all collateral charges, incidental damages, less a reasonable allowance for the consumer’s use of the vehicle up to the date of the first notice of nonconformity that is given to the manufacturer, its agents or authorized dealer.”[3]

The first point to note is that the “contract price” is subject to return to the lienholder, as is only right, since they provided the funds for the purchase to begin with.  Where this becomes a point of contention is the interest that was paid to the lienholder during the period leading up to the vehicle’s return.

This question is answered by the next clause of the provision, which provides for the return of “collateral charges.”  By definition, “collateral charges” are those costs incurred by the consumer as part of the acquisition of the vehicle.  This would include, sales tax, title fees, dealer preparation, factory or dealer-installed options and parts, and earned interest charges.[4]

The Act further provides for payment of “incidental damages” as well as collateral charges.  The Act, however, does not define the term, but refers to the Commercial Code definition.[5]  The Commercial Code defined “incidental damages” to a buyer, as those “expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected.”[6]  Notably, this definition also includes those costs associated with “cover,” which would refer to any replacement reasonably necessary to fulfill the needs of the consumer for that particular item.  Therefore, a consumer would be entitled to recover costs such as towing, routine maintenance, such as oil changes or general repairs, and rental vehicles necessary while your lemon was in the shop.  Consequently, it becomes important to be aware if your vehicle is exhibiting signs of being a lemon, and carefully document all costs you incur related to the care of that vehicle and service-related costs in order to recover these as part of your claim.

Thus to recap, if you purchased a lemon, you are entitled to recover the costs of acquisition of the vehicle, including paid interest, as well as routine care and maintenance.  In the event that your claim goes to court, you would further be entitled to recover your reasonable attorneys’ fees, expert witness fees, and court costs.[7]

It is important to point out, however, that all damages in a lemon law claim are not created equal.  The statute tellingly omits mention of “consequential damages,” which, under standard principles of statutory construction, means that you cannot recover for those losses.[8]  Consequential damages are those losses that include general damages from injury, and foreseeable losses that are particular to the needs of the consumer.  For example, this would include lost earnings while you travel back and forth to the dealership, or wait for your rental vehicle.

Additionally, it does not appear that the statute was intended to cover after-purchase modifications to the vehicle, such as aftermarket window tinting, upgrades to the entertainment system, or other alterations that are neither standard maintenance, nor installed by the dealer.  It should likewise be considered that the Act provides a defense to the manufacturer for “abuse, neglect, or unauthorized modification or alteration of a motor vehicle by the consumer.”[9]  Therefore, any aftermarket modifications could not only void your warranty, but prevent any recovery under the Act.

If you have any questions about losses you have incurred with a vehicle you believe to be a lemon, time is of the essence.  Please do not hesitate to contact our offices or another reputable attorney experienced in the Virginia Motor Vehicle Warranty Enforcement Act.

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[1] A “reasonable” number is dependent on the factors unique to your case.  The factors and analysis of a lemon claim is described in our prior blog post:  A Consumer Guide to the Virginia Lemon Law.  Available at:  https://www.stevenkriegerlaw.com/a-consumer-guide-to-the-virginia-lemon-law/

[2] Virginia Code, § 59.1-207.13(A).

[3] Id., subd. (2).

[4] Virginia Code, § 59.1-207.11.

[5] See id.; Virginia Code, § 8.2-715.

[6] Virginia Code, § 8.2-715(1).

[7] Virginia Code, § 59.1-207.14.

[8] See e.g., Commonwealth v. Brown, 529 S.E.2d 96, 100 (Va. 2000) (discussing the principle of expressio unius est exclusio alterius, “where a statute speaks in specific terms, an implication arises that omitted terms were not intended to be included within the scope of the statute.”).  Such rules of judicial interpretation stem from the understanding that the General Assembly, being fully aware of the various categories of damages that a consumer could suffer, chose to include some categories for recovery, but failed to include others.  Therefore, the legislature did not intend the omitted categories to be recoverable.

[9] Virginia Code, § 59.1-207.13(G)(2).