Problems for Mazda
Date: Mar 28, 2005
Contributor: Jerri Castello
A Win on Lemon Law, but No Lemonade Yet; Dispute Over SUV Could Still Last Months
Waukesha Eight months after her triumph in the state Supreme Court was hailed as a victory for consumers with defective autos, Del Garcia no longer feels like a winner.
Garcia is still behind the wheel of the troubled 2001 Mazda Tribute that launched her lemon law battle 3 1/2 years ago, and she's still going to court.
And although she scored another victory against Mazda earlier this month, she left the courtroom with a return date at the end of August.
"When we won in the Supreme Court in July, I figured I'd be driving a new car by the end of summer," Garcia said. "I never figured we'd be going back to court like this.
One of her attorneys, Vincent Megna, added that if Mazda continues its fight and the current schedule holds it could be 2006 before Garcia's case is resolved.
"Up until now everything that has happened has been about technicalities," Megna said. "It's never been about the merits of our case.
"The only thing left now is to try the case to determine whether this car is a lemon, and it's pretty clear that it is."
Jeffrey Fertl, a Milwaukee attorney who is representing Mazda, said another issue keeps the case alive: money.
"The thing that makes it difficult to resolve the case is the nature and extent of attorney fees at this point," Fertl said. "If the plaintiff wins, she's entitled to damages and reasonable attorney fees. They would amount to more than the damages that could be recovered over the car."
Mazda is not entitled to attorney fees from Garcia if it prevails. So as things stand now, the case is headed for trial.
3 1/2 years to get to square one
"We're at square one," Megna said. "It's taken us all this time to get to square one."
The state's lemon law was created to give car buyers the right to a refund or replacement vehicle if a problem car cannot be repaired after reasonable attempts to do so within the warranty period or one year of delivery.
Garcia, of Hartland, took delivery of her new Mazda in February 2001, and within a few weeks she began experiencing transmission problems. Over the next nine months, the Tribute was in for transmission service five times.
On Sept. 20, 2001, after the car had been in for service for 16 days on its fifth trip to the repair shop, Garcia sent Mazda a letter invoking the lemon law and saying, "I would like to have a replacement," according to court records.
Mazda responded by offering an extended warranty, which she declined, records show. On Oct. 26, 2001, Mazda offered a replacement Tribute, but Garcia, an executive recruiter for banks, never got it, and on Nov. 21, 2001, she sued.
Mazda filed a motion for summary judgment on grounds that the 30- day clock for delivery of the replacement vehicle was never triggered because in her request Garcia did not indicate that she would "transfer title" of the troubled car to Mazda in exchange for the replacement.
On July 9, 2002, Waukesha County Circuit Judge Lee Dreyfus Jr. agreed with Mazda and dismissed the case. The next month, Garcia appealed.
On Sept. 25, 2003, a state Court of Appeals panel upheld Dreyfus by a vote of 2-1, concluding like Dreyfus that the 30-day clock was never triggered.
When the state Supreme Court accepted the case, Garcia found support from the state Department of Transportation and the Economic Justice Institute Inc., a non-profit consumer advocate group in Madison. Both agencies viewed the appellate court ruling as a hyper- technical reading of the lemon law that favored carmakers at the expense of consumers.
In a unanimous decision July 1, the high court ruled in Garcia's favor, saying, "The statute does not require the consumer to use any magic words.' "
But the ruling left two issues to be resolved in trial court: whether Garcia and Mazda had reached a settlement and whether the car was a lemon.
Waukesha County Circuit Judge James Kieffer settled the former earlier this month when he concluded that even if Mazda was on the verge of a settlement with Garcia when she filed her lawsuit, as Fertl contends, the lemon law's 30-day deadline for doing so had passed.
"That needs to be accomplished within 30 days after the request has been made, and that wasn't done in this case," Kieffer said. "There are no excuses. Thirty days means 30 days."
Megna disputes that Mazda made an acceptable settlement offer any replacement car was going to come at a cost for Garcia, he said.
The ruling left the two sides to prepare for trial or try to resolve the case.
"My client is still mulling over their options at this point," Fertl said. "I haven't talked with them about the possibility of a settlement."
When Garcia left the courthouse earlier this month, she headed out to her Tribute, which now has 62,000 miles on it and is no longer under warranty.
"I can't use it to go long distances, and to be honest, almost anytime I get behind the wheel, I wonder if something is going to happen," she said last week. "One reason I want to see this case through is that the little guy needs to know that he has the right to fight in a situation like this.
"The other reason is that it's something I believe in strongly. I'm convinced I'm in the right."
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