I. INTRODUCTION THE CONNECTICUT LEMON LAW

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1 THE CONNECTICUT LEMON LAW I. INTRODUCTION Statistical studies have shown the automobile to be more prone to problems than any other consumer product. 1 Since even an automobile which runs well is costly to operate,' mechanical problems and the related repair costs merely serve to compound the aggravation experienced by the typical consumer. Consequently, when repeated attempts to correct such defects are unsuccessful, the outraged consumer may feel justified in demanding a legal remedy. Cognizant of the frustration often suffered by the consumer of a new automobile, the Connecticut legislature on June 4, 1982, approved "An Act Concerning Automobile Warranties," s unofficially known as the "Lemon Law." Through this legislation, Connecticut became the first state 4 to enact a statute which enables the purchaser of a new automobile to sue the manufac- 1. Pertschuk, Consumer Automobile Problems, 11 U.C.C. L.J. 145, 145 (1978). In 1976, the Health, Education & Welfare's Office of Consumer Affairs reported that 19% of all complaints received concerned automobiles. This was twice the figure for the next highest category. See Pertschuk, supra, at 145. An internal Federal Trade Commission (FTC) memorandum, "Digest of Commission Complaints Correspondence" (Dec. 8, 1977), showed that there are more complaints from automobile owners than from owners of any other consumer product. See Pertschuk, supra, at 145. An unpublished FTC survey, "Consumer Survey on Warranties," prepared by Arthur Young & Co., reported that 30% of motor vehicles purchased had some problem covered by the warranty. Warranted consumer goods overall showed 7% with problems. See Pertschuk, supra, at 146. An analysis of approximately 5,000 auto repairs showed that 33 cents out of every dollar was spent on unnecessary repairs. Schroer, Peyton & Peters, An Evaluation of Component Repair Costs for Auto Check Participants (May 31, 1979)(unpublished study prepared for the Department of Transportation). See Pertschuk, supra, at 145 n A survey by the Hertz Corporation showed that in 1981, American motorists spent on the average $2,790, or 34.5 cents a mile, over an estimated 8,081 miles traveled, to own and operate their automobiles. The national aggregate spent on fuel, maintenance, repairs, insurance, interest and depreciation was estimated at $340.4 billion. In 1980 motorists spent 32 cents a mile over an average of 8,224 miles. The average price of a car in 1981 was $7,967, up from $6,649 in N.Y. Times, July 26, 1982, at 7, col CONN. GEN. STAT (1983). The Act went into effect on October 1, Many other states have since passed their own "Lemon Laws." As of October 6, 1983, 17 states had adopted a version of the Connecticut Act. Twenty other states are considering similar legislation. New Haven Journal-Courier, Oct. 6, 1983, at 22, col. 1. See infra text accompanying note 137.

2 BRIDGEPORT LAW REVIEW [Vol. 5:175 turer directly when the auto proves to be a "lemon." 5 This Note will review the provisions of the Connecticut Uniform Commercial Code (UCC) 6 and the Magnuson-Moss Act, 7 which previously provided legal relief to the dissatisfied automobile purchaser and which can still be used in conjunction with the Lemon Law. The provisions of the Lemon Law, viewed in light of the inadequacies of the remedies previously available, will also be discussed. Finally, this Note will present the criticisms which have arisen in connection with this long-awaited, but relatively untested, statute. II. BACKGROUND Before the Connecticut Lemon Law was enacted, purchasers of motor vehicles in Connecticut were able to revoke acceptance or sue for a breach of warranty under the UCC and the Magnuson-Moss Warranty Act of While these acts have been of some assistance to the consumer, and indeed, may still be used to supplement the new Connecticut law, 8 they have not provided satisfactory relief to consumers in search of a remedy for a defective auto Briefly, a "lemon" under this Act can be defined as a new passenger, or passenger and commercial motor vehicle, which does not conform to the express warranty and, during either the term of this warranty or one year after delivery, cannot be made to conform to the warranty after a reasonable number of attempts to repair. 6. CONN. GEN. STAT. 42a to (1983). See generally J. WHITE & R. SUMMERS, HANDBOOK OF THE LAW UNDER THE UNIFORM COMMERCIAL CODE (2d ed. 1980). 7. Magnuson-Moss Warranty-Federal Trade Commission Improvement Act, 15 U.S.C (1976). See infra notes and accompanying text. 8. The Connecticut Act does not limit "the rights or remedies which are otherwise available to a consumer under any other law." CONN. GEN. STAT (e) (1983). See infra note 133 and accompanying text. 9. Another option auto buyers had was to file a complaint with the Department of Motor Vehicles, which could hold a hearing to consider whether a dealer was qualified to be licensed. This Department, though, does not have the power to direct a dealer to make restitution or repairs. If a consumer suspects unfair trade practice, he can sue under the Connecticut Unfair & Deceptive Trade Practices Act (CUTPA), CONN. GEN. STAT a to -110q (1983). See Hinchliffe v. American Motors Corp., - Conn. -, 440 A.2d 810 (1981)(in order to satisfy the "ascertainable loss" requirement of CUTPA, a plaintiff must prove that he purchased an item partially as a result of an unfair or deceptive trade practice or act and that the item is different from what he bargained for). See generally Comment, Another Victory for the Consumer: Hinchliffe v. American Motors Corp., 3 U. BRIDGE- PORT L. REV. 381 (1982)(court in Hinchliffe broadly interpreted the CUTPA, as was intended by the Connecticut legislature); Comment, "Ascertainable Loss" Under the Con-

3 1983] LEMON LAW A. The UCC and Defective Auto Cases Certain provisions of the UCC can be of help to consumers who encounter defects covered by any form of warranty. Applicable sections are those which discuss express 10 and implied" 1 necticut Unfair Trade Practices Act: Hinchliffe v. American Motors Corp., 14 CONN. L. REV. 659 (1982)(Hinchliffe a powerful catalyst for private CUTPA litigation.) 10. Express warranties are described as any affirmation of fact or promise made by a seller to a buyer, a description of the goods, or a sample or model that is made a basis of the bargain; the seller need not intend to create one. CONN. GEN. STAT. 42a (1983) provides: (1) Express warranties by the seller are created as follows: (a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise. (b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description. (c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model. (2) It is not necessary to the creation of an express warranty that the seller use formal words such as "warrant" or "guarantee" or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty. 11. Implied warranties of merchantability are implied in law and can be invoked when goods are sold by a seller who is a "merchant with respect to goods of that kind." CONN. GEN. STAT. 42a (1983). Such warranties guarantee that products are fit for the ordinary purposes for which they are used. This section reads: (1) Unless excluded or modified as provided by section 42a-2-316, a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale. (2) Goods to be merchantable must be at least such as (a) passed without objection in the trade under the contract description; and (b) in the case of fungible goods are of fair average quality within the description, and (c) are fit for the ordinary purposes for which such goods are used; and (d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and (e) are adequately contained, packaged, and labeled as the agreement may require; and (f) conform to the promises or affirmations of acts made on the container or label if any. (3) Unless excluded or modified as provided by section 42a other implied warranties may arise from course of dealing or usage of trade. Id. Implied warranties of fitness for a particular purpose arise when a seller at the time of contracting has reason to know the particular purpose for which the goods are being bought and that the buyer is relying on the seller's expertise. Section 42a provides: Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless

4 BRIDGEPORT LAW REVIEW [Vol. 5:175 warranties, buyers' remedies of revocation 2 and breach of warexcluded or modified under section 42a an implied warranty that the goods shall be fit for such purpose. CONN. GEN. STAT. 42a (1983). 12. A buyer may revoke acceptance from his immediate seller when he reasonably assumed a defect would be cured after acceptance, the dealer assured him that there were no defects, or he could not find any defects. This defect must substantially impair the value of the goods to him. CONN. GEN. STAT. 42a-2-608(1) (1983). Revocation must occur within a reasonable time. CONN. GEN. STAT. 42a-2-608(2) (1983). It involves cancelling the contract and recovering the purchase price. This section states: (1) The buyer may revoke his acceptance of a lot or commercial unit whose non-conformity substantially impairs its value to him if he has accepted it (a) on the reasonable assumption that its non-conformity would be cured and it has not been seasonably cured; or (b) without discovery of such non-conformity if his acceptance was reasonably induced either by the difficulty of his discovery before acceptance or by the seller's assurances. (2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it. (3) A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them. CONN. GEN. STAT. 42a (1983)(emphasis added). See also CONN. GEN. STAT. 42a (1) (1983) (buyers' remedies in general). It is sometimes difficult to determine when an auto problem has been "cured" because the UCC does not define this. See, e.g., Zabriski Chevrolet Inc. v. Smith, 99 N.J. Super. 441, 240 A.2d 195 (1968)(because "cure" not defined, must look at the facts of each case; right to cure not "a limitless one to be controlled only by the will of the seller.") See also Highsmith & Havens, Revocation of Acceptance and the Defective Automobile: The Uniform Commercial Code to the Rescue, 18 AM. Bus. L. J. 303, 314 (1980). By using the words "to him", 42a seems to take a subjective approach to substantial impairment. See, e.g., Asciolla v. Manter Oldsmobile-Pontiac, Inc., 117 N.H. 85, 88-89, 370 A.2d 270, 273 (1977). The court stated that this UCC section:.creates a subjective test in the sense that the needs and circumstances of the particular buyer must be examined. This determination is not, however, made by reference to the buyer's personal belief as to the reduced value of the goods in question. The trier of fact must make an objective determination that the value of the goods to the buyer has in fact been substantially impaired. See also Highsmith & Haven, supra at But even a subjective approach does not mean that revocation is appropriate when the defects are trivial. Highsmith & Havens, supra, at 311. See Rozmus v. Thompson's Lincoln-Mercury Co., 209 Pa. Super. 120, 224 A.2d 782 (1966)(loose engine support screws caused rattles and were easily corrected); Bill McDavid Oldsmobile, Inc. v. Mulcahy, 533 S.W.2d 160 (Tex. Civ. App. 1976)(cracked battery was easily replaceable); Reece v. Yeager Ford Sales, Inc., 184 S.E.2d 722 (W.Va. 1971)(paint overspray and loose chrome trim trivial defects). Sometimes an automobile is obviously impaired to a substantial degree. See Highsmith & Havens, supra, at 311. See Tiger Motor Co. v. McMurtry, 284 Ala. 283, 224 So. 2d 638 (1969)(car's problems required 30 visits to the repair shop; car was in shop days); Orange Motors of Coral Gables, Inc. v. Dade County Dairies, Inc., 258 So. 2d 319

5 1983] LEMON LAW ranty," sellers' disclaimers of liability 4 and sellers' limitations (Fla. App. 1972)(during the first three months, vehicle had to spend half the time in the repair shop). There is an area between these extremes where difficult questions arise over substantial impairment. Some defects are not major by themselves but many minor defects can cause an auto to be labeled substantially impaired. See Highsmith & Haven, supra, at 312. See, e.g., Zoss v. Royal Chevrolet, Inc., 11 U.C.C. REP. SERV. (CALLAGHAN) 527 (Ind. Super. Ct. 1972)(although individually the non-conformities were not substantial, cumulatively they impaired the value of the car so as to constitute substantial impairment). In other cases the seller refused to correct the problems or was unable to. See Highsmith & Havens, supra, at 312. See Jacobs v. Metro Chrysler-Plymouth, Inc., 125 Ga. App. 462, 188 S.E.2d 250 (1972) (court held that a refusal to repair or an unsuccessful repair is a breach of the warranty); Bayne v. Nall Motors, Inc., 12 U.C.C. REP. SERV. (CALLAGHAN) 1137 (Iowa Dist. Ct. 1973)(problems caused by lack of lubricant at time of sale were so extensive that automobile was not repairable). In Zabriskie Chevrolet, Inc. v. Smith, 99 N.J. Super. 441, -, 240 A.2d 195, 205 (1968), the court considered shattered consumer confidence as a factor in determining substantial impairment: For a majority of people the purchase of a new car is a major investment, rationalized by the peace of mind that flows from its dependability and safety. Once their faith is shaken, the vehicle loses not only its real value in their eyes, but becomes an instrument whose integrity is substantially impaired and whose operation is fraught with apprehension. The actual length of time that is considered "reasonable" has varied. See generally Highsmith & Haven, supra, at 313. See Tiger Motor Co. v. McMurtry, 284 Ala. 283, 244 So. 2d 638 (1969)(one year); Conte v. Dwan Lincoln-Mercury, Inc., 172 Conn. 112, 374 A.2d 144 (1976)(fourteen months); Pavesi v. Ford Motor Co., 155 N.J. Super. 373, 382 A.2d 954 (1978)(seventeen months). But see Green Chevrolet Co. v. Kemp, 241 Ark. 62, 406 S.W.2d 142 (1966)(auto consumer who had kept vehicle for five months before revoking had not rejected auto within a reasonable time after delivery). 13. To sue for a breach of warranty, a buyer retains the non-conforming goods and sues for damages. He must notify the seller of any breach within a reasonable time. CONN. GEN. STAT. 42a-2-607(3) (1983) begins: "Where a tender has been accepted... the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy.. " CONN. GEN. STAT. 42a-2-607(4) (1983) clearly states whose burden it is to establish a breach: "The burden is on the buyer to establish any breach with regard to the goods accepted." Damages in a breach of warranty action are the difference between the value of the goods actually accepted and the goods as they were warranted, plus incidental and consequential losses. See CONN. GEN. STAT. 42a (1983): (1) Where the buyer has accepted goods and given notification as provided in subsection (3) of section 42a he may recover as damages for any nonconformity of tender the loss resulting in the ordinary course of events from the seller's breach as determined in any manner which is reasonable. (2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount. (3) In a proper case any incidental and consequential damages under the next section may also be recovered.

6 BRIDGEPORT LAW REVIEW [Vol. 5:175 Section 42a discusses the buyer's incidental and consequential damages: (1) Incidental damages resulting from the seller's breach include expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or breach. (2) Consequential damages resulting from the seller's breach include (a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and (b) injury to person or property proximately resulting from any breach of warranty. CONN. GEN. STAT. 42a (1983). Recovery of attorney's fees is not mentioned. See Rodriquez, Recovery of Attorneys' Fees in Consumer Contract Actions in Connecticut, 1 U. BRIDGEPORT L. REV. 55 (1980). But see infra notes and accompanying text for a discussion of the attorney's fees provision under the Connecticut Lemon Law. 14. A seller can reduce potential liability under the UCC by disclaiming, modifying or excluding warranties. He cannot negate or limit his liability by saying anything inconsistent with an express warranty, but can limit or negate implied warranties of merchantability by mentioning merchantability and displaying any disclaimers conspicuously. When attempting to exclude or modify an implied warranty of fitness for a particular purpose, the seller must place the disclaimer in writing in a conspicuous place. See CONN. GEN. STAT. 42a-2-316(1) and (2) (1983), which provide: (1) Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed whenever reasonable as consistent with each other; but subject to the provisions of this article on parole or extrinsic evidence negation or limitation is inoperative to the extent that such construction is unreasonable. (2) Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a vriting must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that "There are no warranties which extend beyond the description on the face hereof." Because this provision has been abused by the auto industry, legislatures and courts have stepped in to disallow complete disclaimers of implied warranties. This in effect "make[s] the automobile manufacturer the guarantor of his product in the areas of purely economic loss and warranty liability." Comment, The Automobile Manufacturer as Guarantor of His Product, 11 GONZ. L. REV. 221, 242 (1975). If a seller uses "as is" or a similar description, he can eliminate any warranty liability. See CONN. GEN. STAT. 42a-2-316(3) (1983), which begins: Notwithstanding subsection (2)(a) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like "as is," "with all faults" or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty.. " "As is" is a term sometimes employed to sell used cars. See, e.g., Chamberlain v. Bob Matick Chevrolet, Inc., 4 Conn. Cir. 685, 239 A.2d 42 (1967)(car sold "as is," with the understanding that purchaser was then under a duty to inspect and repair as reasonably required).

7 19831 LEMON LAW of remedies. 16 There are two rights of action available to the consumer under the UCC: revocation of acceptance and breach of warranty. Cases which have discussed revocation of acceptance state that the consumer can only revoke acceptance from his" immediate seller. In automobile cases, the immediate seller will generally be the dealer and, thus, an action against the manufacturer may be foreclosed by the obvious lack of privity Under CONN. GEN. STAT. 42a (1983), a seller may limit remedies available for a breach of warranty. Auto manufacturers often attempt this by stating that repair or replacement of defective parts is the exclusive remedy. CONN. GEN. STAT. 42a-2-719(1) (1983) reads: Subject to the provisions of subsections (2) and (3) of this section and of the preceding section on liquidation and limitation of damages, (a) the agreement may provide for remedies in addition to or in substitution for those provided in this article and may limit or alter the measure of damages recoverable under this article, as by limiting the buyer's remedies to return of the goods and repayment of the price or to repair and replacement of non-conforming goods or parts; and (b) resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy. If a seller limits the buyer's remedy to "repair and replacement of non-conforming goods or parts," it could mean that as long as a consumer eventually gets a good product, the seller can protect himself. See, e.g., Koperski v. Husker Dodge, 208 Neb. 29, 302 N.W.2d 655 (1981)(even though results harsh, trial court correct in finding that warranty was not breached). See also Sanson, The Automobile Warranty Crisis: Would Enactment of Proposed Amendments to the Magnuson-Moss Warranty Act Provide a Panacea For the Consumer?, 85 DICK. L. REV. 407, 413 (1981); Comment, Koperski v. Husker Dodge, Inc.: Revocation of Acceptance under Section 2-608: The Test for Substantial Impairment of Value, 15 CREIGHTON L. REV. 170, 176 (1981); Highsmith & Havens, supra note 12, at But see Orange Motors of Coral Gables, Inc. v. Dade County Dairies, Inc., 258 So. 2d 319 (Fla. App. 1972) (seller not allowed to tinker with auto indefintely in hope that it may ultimately be made to comply with warranty). If an exclusive remedy such as the one mentioned above fails of its "essential purpose," some courts will invoke UCC 2-719(2), which provides that all remedies under the Code then become available: "Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this title." See CONN. GEN. STAT. 42a-2-719(2)(1983). Therefore, even if there are disclaimers present, the consumer is potentially offered some extra protection. See, e.g., Conte v. Dwan Lincoln-Mercury, Inc., 172 Conn. 112, 374 A.2d 144 (1976)(since limited warranty had failed of its essential purpose, plaintiff entitled to refund of purchase price). But courts evaluate failure of an "essential purpose" differently; they also disagree on whether consequential damages may be awarded for this failure. See CONN. GEN. STAT. 42a-2-719(3): "consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable." See also Sanson, supra note 15, at Although this Note uses the masculine pronoun when referring to the "consumer," what is being stated applies, of course, to both sexes. 17. See, e.g., Conte v. Dwan Lincoln-Mercury, Inc., 172 Conn. 112, 374 A.2d 144 (1976)(no buyer-seller relationship between Ford and the plaintiff).

8 BRIDGEPORT LAW REVIEW [Vol. 5:175 By contrast, both the manufacturer and the dealer may be liable for damages under a warranty theory, because privity is not a requisite element of an action for breach. 18 As a consequence of this several liability, dealers and manufacturers have continually attempted to shift the fault, and therefore the liability for the breach, to each other. 9 Such disputes will often place an unsuspecting consumer in the middle of the confrontation. 20 This dilemma may well surprise a consumer, who while merely seeking a prompt repair of his automobile, instead finds himself involved in a lengthy lawsuit. Connecticut courts have on at least two occasions discussed the UCC sections in the context of a defective automobile. In LeBlanc v. Newman Comet-Lincoln Mercury, Inc.," the plaintiff had purchased a new automobile from the defendant dealership. 22 Shortly thereafter, the car began to vibrate and became so noisy that the plaintiff was forced to discontinue driving it. 28 When the plaintiff's husband returned the car to the dealership, 18. The first Connecticut case to accept that privity was not necessary for recovery in warranty cases was Hamon v. Digliani, 148 Conn. 710, 174 A.2d 294 (1961). Here, the court held that when a manufacturer makes representations by advertisements or labels on his product to induce a customer to buy, it should be held strictly accountable to anyone who buys the product in reliance on the representations and later suffers injury because the product fails to conform. Id. at 718, 174 A.2d at Earlier, in Henningsen v. Bloomfield Motors Inc., 32 N.J. 358, 161 A.2d 69 (1960), the court held that the implied warranty of merchantability extends from the manufacturer or dealer to the purchaser or others who use the automobile with the owner's consent. A more recent discussion of this issue can be found in Royal Lincoln Mercury Sales v. Wallace, 415 So. 2d 1024 (Miss. 1982). The court held that Wallace could not revoke the sales contract from the Ford Motor Company for a defective auto, but could recover under a breach of an express warranty made by Ford. Wallace had received a written warranty from Ford at the time of purchase which said that the seller as agent of the manufacturer would be liable only for repair and replacement of defective parts. Id. at The court decided that since the car had never been correctly repaired, the warranty had failed of its "essential purpose" of providing the purchaser with an auto reasonably suited for its intended use. The court applied UCC 2-719(2), which allowed the plaintiff to recover the purchase price, minus depreciation, from Ford. When this issue was submitted to the jury, the verdict coincided with the purchase price. The defendants did not offer evidence of diminished value, so the whole amount was allowed to stand. Id. at Pertschuk, supra note 1, at Id. Some of the friction arises over "fair compensation rates, incompetent work, false claims, and unfair denial of reimbursement claims." Id. See also Highsmith & Havens, supra note 12, at Conn. Cir. 365, 273 A.2d 726 (1970). 22. Id. at 367, 273 A.2d at Id. at , 273 A.2d at 728.

9 19831 LEMON LAW he was told that it needed a new drive shaft. The drive shaft was replaced, but the vibrations continued. 2 ' Subsequently, a factory representative told the plaintiff's husband that a realignment of the new drive shaft was necessary. The realignment was done, but the vibrations still continued 2 5 The plaintiff then consulted an attorney and subsequently removed the license plates and left the car at the dealership. The car had been driven approximately 4000 miles. 26 At this point the plaintiff instituted an action for breach of warranty against the dealer. The dealer in turn impleaded the manufacturer as a third party defendant, alleging that Ford had given warranties ensuring the car's quality. 2 The circuit court of appeals held that there had been a breach of warranty by both the dealer and the manufacturer. 29 Accordingly, the dealer was held liable to the buyer for the difference between the value of the automobile as it would have been without the defects and the value of the car in its defective state. 30 Furthermore, the manufacturer was held liable to the dealer for an equal amount, 31 despite Ford's claim that the plaintiff's failure to allege a duty by Ford to the dealership in her complaint precluded any such recovery by the dealership. 32 LeBlanc serves as a clear example of the consumer's dilemma. Both the dealer and the manufacturer denied any liability under the warranty. 3 3 Clearly, such a dispute inevitably serves to extend the litigation. Also, it should be noted that the plaintiff in LeBlanc was required to wait more than four years after the purchase of the automobile to obtain a remedy. 3 ' Fur- 24. Id. at 367, 273 A.2d at Id. 26. Id. 27. Id. at 366, 273 A.2d at Id. 29. Id. at 366, 273 A.2d at Id. at 370, 273 A.2d at 729. This is the basic measure of damages in a warranty action. See CONN. GEN. STAT. 42a-2-714(2) (1983); supra note LeBlanc, 6 Conn. Cir. at 369, 273 A.2d at Both the dealer and the manufacturer had made warranties to the buyer which had contained generally similar obligations. The warranty in the owner's manual said that the automobile was free, under normal use and service, from defects in material and workmanship for a period of 24 months from date of delivery. Id. at 369, 273 A.2d at Id. 33. See supra text accompanying note LeBlanc, 6 Conn. Cir. at 368, 273 A.2d at 728. The car had been finally re-

10 BRIDGEPORT LAW REVIEW [Vol. 5:175 thermore, one may question whether the standard measure of damages in such breach of warranty actions is adequate, since the consumer receives not the full value of the car, but only the difference in value between the car he bought and what the car would have been worth without any defects. In 1976, the Connecticut Supreme Court decided Conte v. Dwan Lincoln-Mercury, Inc., 35 which illustrates the necessity for privity of contract when the consumer seeks to avail himself of the revocation provision of the UCC. In Conte, the plaintiff purchased a new Lincoln Continental from the defendant Dwan in March of The day after the plaintiff Conte took delivery, he noticed that the motor and transmission were leaking oil and that the cigarette lighter and windshield wipers did not work. 3 7 The next day, Conte returned the car to Dwan and the windshield wipers were repaired. 38 During the following week the electric windows failed and the paint began to blister. 39 On one occasion, the plaintiff received an electric shock while driving. 40 He subsequently discovered that the alternator had to be replaced and the fan belt repaired. 41 Between October 25, 1970 and May 1971, the car had to be towed to Dwan five times.' 2 From the time Conte took delivery until May 1971, Dwan had attempted to repair the auto eight times.' 3 As a consequence of the repairs Conte's car was in the dealership's garage for six to eight weeks. 44 In May 1971, Conte told Dwan to keep the automobile because he believed the car to be too dangerous to drive.' 5 Ultimately Conte brought suit against both the dealer and turned to the dealership around May, Id. at 368, 273 A.2d at 728. This case was decided July 10, Id. at 366, 273 A.2d at Conn. 112, 374 A.2d 144 (1976). Conte is cited in the legislative history of the Connecticut Lemon Law. See 1982 Conn. Joint Standing Comm. Hearings, General Law (pt. 2), at 235 [hereinafter General Law Hearings] Conn. at 116, 374 A.2d at Id. at 117, 374 A.2d at Id. at 117, 374 A.2d at Id. at 117, 374 A.2d at Id. at 118, 374 A.2d at Id. 42. Id. at , 374 A.2d at Id. 44. Id. 45. Id.

11 19831 LEMON LAW manufacturer 6 for breach of warranty' 7 and revocation of acceptance. With respect to the action for revocation, the court held that because Ford's contract had only been with the dealer,' the plaintiff could not revoke acceptance from the manufacturer. 4 9 However, the court did award to Conte the purchase price from the dealer, 50 since the non-conformities had substantially impaired the value to the buyer"' and revocation had occurred within a reasonable time. Despite the fact that the express warranty had stated that the buyer was entitled only to 46. Dwan was an authorized Lincoln Continental dealer under a written sales and service franchise agreement with Ford. The agreement stated that Dwan was not the agent of Ford. Id. at 116, 374 A.2d at 146. See infra note The back of the purchase order agreement contained a disclaimer which said that there were no warranties except the most recently printed Ford Motor Company warranties, "and they shall be expressly in lieu of any other express or implied warranty, condition or guarantee on the new vehicle, chassis or any part thereof, including any implied warranty of merchantability or fitness and of any other obligation on the part of Ford Motor Company or the Selling Dealer." Id. at 117, 374 A.2d at 146. The basic Ford warranty provided that the dealer would repair or replace any part, except tires and tubes, that was defective in factory materials or workmanship in normal use within 12 months from the date of original delivery. Id. 48. The plaintiff had argued that the dealer was acting as the apparent agent of the manufacturer, but the court treated agency as a question of fact and ruled against the defendant. Id. at 124, 374 A.2d at The court held that to be entitled to the remedy of revocation, there must be a buyer-seller relationship. Id. at 125, 374 A.2d at 150. There was no such relationship here between the plaintiff and Ford, because the plaintiff's contractual relationship was with Dwan. Id. For other cases which barred the plaintiff's remedy for lack of privity, see Royal Lincoln-Mercury Sales v. Wallace, 415 So. 2d 1024 (Miss. 1982); Clark v. Ford Motor Co., 46 Or. App. 521, 612 P.2d 316 (1980). 50. See CONN. GEN. STAT. 42a (1983); supra note 12. Each case must be examined separately to determine "substantial impairment of value" to a particular buyer. The Conte court, 172 Conn. at 121, 374 A.2d at 148, compared the facts of this case to those of Tiger Motor Co. v. McMurtry, 284 Ala. 283, 224 So. 2d 638 (1968). In Tiger Motor Co., the plaintiff had bought and accepted an auto that consumed an excess amount of oil, gave low gas mileage and continued to jump or misfire, even after a new fuel pump, carburetor, piston rings and a "short block" had been installed. The court held that the evidence of repairs supported the conclusion that there had been a substantial impairment of value to the buyer and that the buyer had been justified in revoking his acceptance a year after the sale. Id. at, 224 So. 2d at See CONN. GEN. STAT. 42a-2-608(2) (1983); supra note 12. Whether the plaintiff revokes within a reasonable time depends on "the nature, purpose and circumstances of such action." CONN. GEN. STAT. 42a-1-204(2) (1983). Although in Conte the plaintiff did not revoke his acceptance until fourteen months after the sale, he was in constant touch with the dealer, and relied on the dealer's assurances that the auto would be repaired. 172 Conn. at 122, 374 A.2d at 149. When the attempts seemed futile, he then notified Dwan of his revocation. Id.

12 BRIDGEPORT LAW REVIEW [Vol. 5:175 the repair and replacement of defective parts, 52 the plaintiff was not precluded from revoking his acceptance since, as the court observed, this limited remedy had failed of its "essential purpose" of eventually providing a defect-free car. 53 As Conte demonstrates, the automobile consumer will encounter certain hurdles in an action for revocation under the UCC. The plaintiff in such an action carries the burden of proving that the value of the automobile has been substantially impaired by the alleged defects and that the revocation occurred within a reasonable time. 54 These are questions of fact, as the terms themselves suggest. 55 Thus, a plaintiff may find at the institution of an action for revocation that he lacks objectively ascertainable standards upon which to base his allegations. In addition, the plaintiff will discover that since he must relinquish possession of the automobile at the time of revocation, he will be left for the period of the litigation without the use of an automobile and without the money paid at purchase. At the time Conte was resolved, the plaintiff had been without either his car or a remedy for five and one half years. 56 In Conte the plaintiff may alternatively have sought to receive damages under the breach of warranty provisions in the UCC. 57 Indeed, the plaintiff had argued breach of warranty at the trial level. The court, however, granted a directed verdict on the issue upon a motion from Ford because the plaintiff lacked sufficient evidence of damages. This issue was never raised on appeal. 68 Because of the potential difference in the amount of damages that can be awarded under the two UCC remedies, Conte and LeBlanc suggest that an action for revocation may be preferable to an action for breach of warranty. However, where an action for revocation is not available to the consumer by virtue 52. Conte, 172 Conn. at 123, 374 A.2d at Id. See CONN. GEN. STAT. 42a-2-719(2) (1983); supra note 14. See also Riley v. Ford Motor Co., 442 F.2d 670 (5th Cir. 1971). 54. CONN. GEN. STAT. 42a-2-607(4) (1983). The buyer has the burden of establishing any breach of the goods accepted. 55. See CONN. GEN. STAT. 42a (1983); supra note The plaintiff in Conte returned his car to the dealer in Conn. at 118, 374 A.2d at 147. This case was decided in December of Id. at 113, 374 A.2d at Id. at 112, 374 A.2d at Id.

13 19831 LEMON LAW of his failure to establish substantial impairment or timeliness of the revocation, the consumer may be limited to recovery of damages under the UCC by an action for breach of warranty. The warranties which the consumer obtains at purchase, however, may themselves be of limited assistance since express warranties tend to disclaim all implied warranties, and thereby potentially abrogate more protection than they actually purport to provide. 59 B. The Magnuson-Moss Warranty Act" 0 Automobile manufacturers offer express warranties to assure consumers that they will stand behind the cars they produce. Such "protection" may allow the consumer to feel more confident when making his purchase; however, promises made by automobile manufacturers are not always kept. A Federal Trade Commission (FTC) study shows that twenty-five percent of consumers with motor vehicle warranty problems are not satisfied with the relief provided by the manufacturer or dealer. 61 Difficulties with warranties have resulted from three general factors.' First, as mentioned above, express warranties almost always disclaim all meaningful implied warranties. Second, those express warranties which do provide such protection are often so complex that they serve merely to confuse, if not mislead, the consumer. Finally, as demonstrated by LeBlanc, and to a certain extent, by Conte, consumer warranties are often difficult to enforce against a manufacturer. Consequently, it is not surprising 59. See CONN. GEN. STAT. 42a-2-316(2) (1983); supra note Magnuson-Moss Warranty-Federal Trade Commission Improvement Act, 15 U.S.C (1976). See generally Sanson, supra note 15; Strasser, Magnuson- Moss Warranty Act: An Overview and Comparison with U.C.C. Coverage, Disclaimer, and Remedies in Consumer Warranties, 27 MERCER L. REv (1976); Kanwit & Halverson, The "Lemon Law": Its Rules and Their Application to Retailers, 58 CHI. B. Rc. 200 (Jan-Feb. 1977). 61. "Consumer Survey on Warranties," prepared by Arthur Young & Co. (unpublished) (cited in Pertschuk, supra note 1, at 146 & n.5). Compare this with 7% dissatisfaction for all other products. Id. Some reasons for auto consumer dissatisfaction are that the manufacturer's zone representatives do not return phone calls and break appointments without notice; parts needed for warranty repairs are not immediately available; and consumers are sometimes forced to make many return trips to the dealer without repair of a recurring problem. Sometimes, a customer is encouraged to cut losses by trading in his lemon for a new car. This means that the consumer is the one that loses money. Id. at Strasser, supra note 60, at 1111.

14 BRIDGEPORT LAW REVIEW [Vol. 5:175 to discover that the consumers who obtain satisfactory results from the protections ensured by warranties are in most instances only those persistent enough to commence litigation. 6 " The Magnuson-Moss Warranty Act was designed to modify and supplement state statutory remedies as they apply to all consumer warranties. 6 The purposes of the Act were to make consumer product warranties easier to understand, improve competition in the marketing of consumer products, prevent deception in warranties, and encourage the establishment of informal settlement procedures for warranty disputes." While the Act does not require manufacturers to supply written warranties, it does require any warranties which are supplied to conform to the Act's provisions. 66 The Act differentiates between "full" and "limited" warranties and requires the manufacturer to specifically state which type of warranty is being provided. 67 Under a full warranty, a remedy must be provided without charge to the consumer for the covered defects within a reasonable period of time. Time limits are expressly prohibited with respect to implied warranties, and limitations on consequential damages arising from a breach of implied warranties must be set forth conspicuously. After a reasonable number of attempts to repair defects, the "full" warrantor must allow the consumer to choose between a refund or the replacement of the product. 68 Written warranties which do not meet these standards must be designated as "limited" warranties. 6 ' 63. Id. at 1111 & n Id. at Sanson, supra note 15, at 407; Kanwit & Halverson, supra note 60, at 200. See also 119 CONG. Rxc. 972 (1973)(remarks of Sen. Moss); H.R. Rep. No. 1107, 93d Cong., 2d Sess. 23, reprinted in 1974 U.S. CODE CONG. & AD. NEws U.S.C. 2302(20)(b)(1)(B)(2) (1976). See also Sanson, supra note 15, at 415. There are two types of "written warranties" under 15 U.S.C. 2301(6) (1976): any written affirmation of fact or written promise made in connection with the sale which says that the material or workmanship is defect free or will reach a specified level over a specified period of time; or any writing in connection with a sale which promises to refund, repair, replace or perform other remedial action if the product does not meet the written specifications U.S.C (1976). See Sanson, supra note 15, at U.S.C (1976). 69. Id. 2303(a)(2) (1976). Under 15 U.S.C. 2308(10) (1976), the only way to limit an implied warranty is to have the implied warranty expire at the same time as an express warranty of reasonable duration; this duration must be conspicuous, and must be

15 1983] LEMON LAW The Act encourages manufacturers to establish informal mechanisms for the settlement of complaints. 0 In the event that a manufacturer chooses to establish a settlement mechanism, FTC regulations dealing with such considerations as funding, procedure, and potential bias are controlling. 7 1 Should the decision produced by the settlement procedure fail to provide the consumer with a satisfactory remedy, he may disregard the decision and exercise his option to institute a civil suit for "damages and other legal and equitable relief. ' 7 2 If a suit is later brought, to aid the successful plaintiff in obtaining an adequate remedy, the Act enables the court to determine whether the consumer may recover costs, expenses, and attorney fees. 7 1 While the Magnuson-Moss Act was intended to mitigate some of the problems encountered by consumers under the UCC, and thereby ensure relief to new car buyers through their warranties, the Act has hardly served as a panacea for the consumer. Indeed, because full warranties are not required, auto on the face of the warranty. Cf. CONN. GEN. STAT. 42a (1983) ("Exclusion or modification of warranties"); supra note U.S.C. 2310(a)(1) (1976) states: "Congress hereby declares it to be its policy to encourage warrantors to establish procedures whereby consumer disputes are fairly and expeditiously settled through informal dispute settlement mechanisms." U.S.C. 2301(a)(2) (1976). The applicable regulations can be found in 16 C.F.R. 703 (1983). 16 C.F.R lists information that the warrantor must disclose on the face of the warranty- the availability of the dispute settlement mechanism, the name and address (or phone number) of the mechanism, any requirement that the consumer resort to the mechanism before seeking other remedies, a statement (if applicable) that other information concerning the mechanism can be found elsewhere with the product. See also Sanson, supra note 15, at C.F.R (1983) discusses the organization of the mechanism: it should be sufficiently funded to insure fair resolution of disputes, it cannot charge consumers for the use of the mechanism, and it must be sufficiently insulated so that decisions are not influenced by either the warrantor or the sponsor. 16 C.F.R discusses the operation of the mechanism. Written operating procedures must be developed which state at least the following provisions: both parties must be notified; the mechanism is required to investigate and organize information necessary for a fair resolution; a fair decision must be rendered within 40 days of notification of the dispute and be based on any information gathered or submitted at an oral presentation; both the warrantor and the consumer must be notified of the decision. This decision can include any appropriate remedies, including repair, replacement, refund, reimbursement for expenses, and compensation for damages. Decisions of the mechanism are not legally binding on any person, but the warrantor shall act in good faith. If a civil action arises, any decision of the mechanism is admissible in evidence. Id U.S.C 2310(d)(1) (1976). 73. Id. 2310(d)(2) (1976).

16 BRIDGEPORT LAW REVIEW [Vol. 5:175 manufacturers generally offer only limited warranties." Of course, the effect of this practice is to deny to automobile consumers the full range of protection available under the Act. 15 Because recovery of attorney fees is speculative, lawyers have been reluctant to accept warranty cases. 76 Punitive damages are not expressly provided for.7 Furthermore, class actions under the 74. See Sanson, supra note 15, at 423. See also S. 1701, 96th Cong., 1st Sess., 125 CONG. REC. 22, (1979)(letter from Clarence M. Ditlow III, executive director, Center for Auto Safety). "Because of loopholes, vagueness and the resistance of the-auto manufacturers, the Magnuson-Moss Act did not accomplish its intended purpose of helping consumers with auto problems, which remain the top consumer complaint in America." Id. 75. See 125 CONG. REc. 22,667 (1979) (letter from Esther Peterson, Director of Office of Consumer Affairs): The warrantor who gives a 'limited' warranty has no obligation to actually remedy a defect in a reasonable time. Nor is the manufacturer obligated to provide a refund or replace an automobile which still contains defects after a reasonable number or repair attempts. Instead, the warrantor of a limited warranty has only the obligation to attempt to repair the defects-often until the warranty expires. Id U.S.C. 2310(d)(2) (1976)(emphasis added) reads: If a consumer finally prevails in any action brought under paragraph (1) of this subsection, he may be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of cost and expenses (including attorneys' fees based on actual time expended) determined by the court to have been reasonably incurred by the plaintiff for or in connection with the commencement and prosecution of such action, unless the court in its discretion shall determine that such an award of attorneys' fees would be inappropriate. In April 1977, members of the FTC's Bureau of Consumer Protection communicated with 21 attorneys who had begun to sue auto manufacturers under the Act. Most said that because of the discretionary nature of fee recovery, attorneys either refused warranty cases or tried to settle before trial. STAFF OF HOUSE COMM. ON INTERSTATE AND FOREIGN COMMERCE, 96TH CONG., 1ST SESS., REPORT ON AUTOMOBILE REPAIRS 34 (Comm. Print 1979)(cited in Sanson, supra note 15, at 423). However, it has also been reported that the Magnuson-Moss Act has "made it easier for consumers to bring actions against dealers and manufacturers by allowing for recovery of attorney fees." Nat'l L. J., July 4, 1983; at 1, col Compare Champion Ford Sales, Inc. v. Levine, 433 A.2d 1218 (Md. App. 1981)(Act permits recovery of attorney fees by consumer who wins, provided the seller given opportunity to cure) and Ventura v. Ford Motor Corp., N.J. Super. 45, 433 A.2d 801 (1981)(counsel fees awarded) with Trost v. Porreco Motors, Inc., 443 A.2d 1179 (Pa. Super. 1982)(trial judge did not abuse his discretion by denying plaintiff an award of attorney fees). 77. This has brought about inconsistent decisions. See Sanson, supra note 15, at 424. In Novosel v. Northway Motor Car Corp., 460 F. Supp. 541 (N.D.N.Y. 1978), the court held that the applicable law for measuring damages is the law of the forum state. Id. at 545. Here, New York law stated that punitive damages are not recoverable in contract actions. Id. But in In re General Motors Corp. Engine Interchange Litigation,

17 19831 LEMON LAW Act are virtually impossible to maintain as a result of the requirement that the names of at least one hundred class members must appear on the complaint." 8 Finally, auto manufacturers have failed to establish informal dispute settlement mechanisms and, accordingly, the consumer has been left with litigation as his only alternative. 7 9 III. THE CONNECTICUT ACT Representative John Woodcock" authored the Connecticut Lemon Law in the desire to facilitate a plaintiff's recovery in an action against the manufacturer for a defective new automobile."' The goal of the Act is to compel performance of any express warranties made by the manufacturer to the consumer. 82 Although the scope of the Act is narrow in that it only seeks to 594 F.2d 1106, n.44 (7th Cir.), cert. denied, 444 U.S. 870 (1979), the court stated that punitive damages might be recoverable because "it is not unlikely that Congress intended to provide at least the same relief available under state law for breach of warranty." U.S.C. 2310(d)(3) (1976). It can be very difficult to find 100 plaintiffs for an automobile suit. See Sanson, supra note 15, at 423. In Bair v. General Motors Corp., 80 F.R.D. 136 (S.D. Ohio 1978), the plaintiff brought a class action on behalf of herself and all other purchasers of 1977 Chevrolet cars defectively painted. The case was dismissed because 100 plaintiffs were not named in the complaint, despite the plaintiff's information that the class encompassed several thousand persons. Two other cases where a class action was denied because there were not 100 named plaintiffs: Lieb v. American Motors Corp., 538 F. Supp. 127 (S.D.N.Y. 1982); Watts v. Volkswagen Artiengesellschaft, 488 F. Supp (D.C. Ark. 1980). See also Sanson, supra note 15, at 423; Pertschuk, supra note 1, at 148 (the 100 named plaintiffs limit probably discourages legitimate class actions.) 79. See Sanson, supra note 15, at 424. In 1981, Ford Motor Co. had three complaint-resolution boards, and General Motors had two. Id. See also Pertschuk, supra note 1, at 149, where the author suggests that Congress should impose mandatory impartial informal dispute-settlement procedures for automobile warranty disputes. See also infra note 135 and accompanying text. 80. John J. Woodcock III, Conn. State Rep., 14th District (Asst. Majority Leader). 81. Representative Woodcock has stated that: This bill would help to restore the confidence of the American public in our automobile industry and hopefully see that industry restored to its former stature. It will improve the automobile manufacturers' quality control. It will improve repair service by dealers. It will reduce the inconvenience, the expense, the frustration, the fear and the emotional trauma that lemon owners commonly endure. And it will provide a clear standard, which will give consumers an effective, reasonable and meaningful remedy, which will, in turn, ultimately reduce costs and delays in lengthy litigation. See General Law Hearings, supra note 35, at Id. at

18 BRIDGEPORT LAW REVIEW [Vol. 5:175 enforce express warranties," 3 this is not necessarily problematic. If a consumer decides that another cause of action would be more appropriate, the language of the Act states that the buyer may look for a remedy under any other law. 8 4 The Act does have its own procedural requirements. Should a consumer" discover that the new motor vehicle 6 which he purchased in Connecticut "does not conform to all applicable express warranties, 8 7 he must "report the nonconformity to the manufacturer, its agent or its authorized dealer" 88 during either the term of the express warranty or "within one year following the date of original delivery of the motor vehicle to a con- 83. Id. at 232. See CONN. GEN. STAT (b) (1983). 84. CONN. GEN. STAT (e) (1983). 85. A "consumer" is defined in CONN. GEN. STAT (a) (1983) as: The purchaser, other than for purposes of resale, of a motor vehicle, any person to whom such motor vehicle is transferred during the duration of an express warranty applicable to such motor vehicle, and any other person entitled by the terms of such warranty to enforce the obligations of the warranty. 86. "Motor vehicle" is defined in CONN. GEN. STAT (a) (1983) as: "A passenger motor vehicle or a passenger and commercial motor vehicle, as defined in subdivisions (35) and (36) of Section 14-1 of the general statutes, as amended, which is sold in this state." CONN. GEN. STAT. 14-1(35) (1983) defines a "passenger motor vehicle" as "a motor vehicle having a capacity of carrying not more than ten passengers, designed and used for the purpose of transporting persons with their necessary personal belongings." CONN. GEN. STAT. 14-1(36) (1983) defines a "passenger and commercial motor vehicle" as "a motor vehicle used for passenger and commercial purposes." 87. Id (b) (1983). The Connecticut Lemon Law does not define an "express warranty," but the UCC does. See CONN. GEN. STAT. 42a (1983); supra note 10. A consumer lawyer, William H. Clendenen, has stated that under the UCC in Connecticut: Express warranties can be created in several ways, including by oral statements, by advertising, by pictures, by the label or words on the motor vehicle, by written express warranties, and through the observable qualities of the product itself. The express warranty may be created days or months before the purchase or after the transaction is consummated. Therefore, the consumer sold a defective motor vehicle must scrutinize closely the full transaction, from presale advertising to postsale statements and repairs. 9 Conn. L. Trib. No. 14, at 3, col. 3 (Apr. 4, 1983). As a practice tip for enforcing the Lemon Law in Connecticut, Mr. Clendenen suggests that the client should bring to the initial interview all the documents that concern the purchase of the motor vehicle, such as the Connecticut Trade Association standard purchase order, the sales financing contract with the dealer and the bank or finance company, the dealer invoice, window sticker, the federal odometer disclosure, manufacturer's express warranty booklet, any other warranty documents, and title. Id. at 3, col CONN. GEN. STAT (b) (1983). Attorney Clendenen states: "This reporting can be oral or written, but the consumer is better protected by a written report of the nonconformity." 9 Conn. L. Trib. No. 14, at 6, col. 1 (Apr. 4, 1983).

19 19831 LEMON LAW sumer," 89 whichever is first. The law therefore states a time period in which defects must be reported to the manufacturer. This is an improvement over prior Connecticut law to the extent that the language of the UCC states merely that, in an action for revocation or breach of warranty, the buyer must notify the seller of the revocation or breach "within a reasonable time." 9 This general language can work against a consumer since there are potentially many interpretations of what "a reasonable time" may entail. 9 ' It is highly arguable, though, that the one year period presently stated in the Connecticut Lemon Law is insufficient since many mechanical defects which originate with the manufacturer may not be discovered until a consumer has owned his car for over a year. After the consumer reports a nonconformity, repairs must be attempted in order to "conform the vehicle to such express warranties." '92 As long as the nonconformities are reported during the warranty term or the one year period, repairs can be made afterwards. 93 Under the Connecticut law, the manufacturer is allowed a "reasonable number of attempts" to correct any defects. 94 The statute determines reasonableness by establishing a rebuttable 95 presumption that if either the same defect has not been successfully repaired after four or more attempts, or the vehicle has been out of service thirty or more calendar days, there have been a reasonable number of attempts." 0 The 89. CONN. GEN. STAT (b) (1983). The term of the warranty or the one year period "shall be extended by any period of time during which repair services are not available to the consumer because of a war, invasion, strike or fire, flood or other natural disaster." Id. 90. See id. 42a-2-607(3)(a)(1983); supra note 13. See also id. 42a-2-608(2) (1983); supra note See supra note CONN. GEN. STAT (b) (1983). 93. Id. 94. Id (c) (1983). 95. Although the word "rebuttable" does not appear in the statute, it was the intent of Representative Woodcock that the manufacturer be allowed to try to show that the number of repair attempts or days out of service has not been unreasonable. See General Law Hearings, supra note 35, at CONN. GEN. STAT (d) (1983). The original bill contained the clause "20 or more business days," but this was changed to "30 or more calendar days." General Law Hearings, supra note 35, at 233. This 30 day period "shall be extended by any period of time during which repair services are not available to the consumer because of a war, invasion, strike or fire, flood or other natural disaster." CONN. GEN. STAT (d) (1983).

20 BRIDGEPORT LAW REVIEW [Vol. 5:175 warrantor then has the opportunity to overcome this presumption by presenting evidence which leads the trier of fact to conclude that the number of attempts to repair or the time out of service has not be unreasonable. 7 The manufacturer may assert two affirmative defenses under the Act. 98 Its first potential defense is that an alleged defect "does not substantially impair such use and value." 99 Determination of what "substantial impairment" consists of is a question of fact and is patterned after language found in the UCC Although one of the problems that consumers encounter when suing under the UCC is proving that their automobile is actually substantially impaired, the Connecticut Lemon Law avoids what may otherwise be an onerous burden on the consumer by using the expression "substantial impairment" in a different context. Under the new statute, the manufacturer has to show lack of substantial impairment. The Act has consequently switched the burden from the plaintiff, to prove that an auto is substantially impaired, to the defendant manufacturer to prove that it is not. Although the consumer is relieved of this burden, the court must still decide whether there is substantial impairment if the manufacturer asserts this defense. In determining lack of substantial impairment, a court should take into consideration that while individual defects may not be substantial by themselves, many small defects when viewed together may be quite substantial. 101 It remains to be seen whether substantial impairment will be viewed as something that is subjective to each consumer The second possible defense under the Act is that the defects are a result of consumer abuse, neglect, unauthorized modifications or alterations. 103 Manufacturers justifiably did not want to be held liable for consumer misuse, and therefore sought protection during passage of the Act See General Law Hearings, supra note 35, at CONN. GEN. STAT (c)(1) and (2) (1983). 99. Id (c)(1) (1983) See id. 42a-2-608(1) (1983); supra note See supra note The UCC states that a consumer can revoke acceptance only if the nonconformity "substantially impairs the value to him," and therefore seems to take the subjective approach. See CONN. GEN. STAT. 42a-2-608(1) (1983); supra note CONN. GEN. STAT (c)(2) (1983) See General Law Hearings, supra note 35, at (remarks of Eugene Wagner). Wagner expressed the opinion that "there is a substantial amount of consumer

21 1983] LEMON LAW In the event that the manufacturer, dealer, or agent is "unable to conform the motor vehicle to any applicable express warranty by repairing or correcting any defect or condition which substantially impairs the use and value of the motor vehicle to the consumer after a reasonable number of attempts, " ' ' 5 the manufacturer must replace the vehicle with a new one or "accept return of the auto from the consumer and refund the purchase price." 106 The statute thus explicitly grants to a successful plaintiff one of two remedies: replacement of his vehicle or a refund. The Act also provides that the manufacturer, not the dealer, must accept responsibility for any refund or replacement A 1983 amendment to the Act further demonstrates that the intent of the Lemon Law is to keep the legal obligation with the manufacturer. The amendment states that a manufacturer cannot attempt to place ultimate liability on an authorized dealer for any refunds or replacements, without evidence that the dealer made repairs "in a manner inconsistent with the manufacturers' instructions.' ' 08 Any amount refunded by the manufacturer must equal "the full purchase price including collateral charges, less a reasonable allowance for the consumer's use of the vehicle." 1' The existence and the amount of collateral charges will be a factual determination." 0 During passage of the bill, there was some debate in the legislature as to whether these collateral charges should include the state sales tax, and if so, whether the state or the manufacturer would be responsible for this payment to the plaintiff."' abuse... " Id. at CONN. GEN. STAT (c) (1983) Id Id. As previously discussed, manufacturers and dealers continually attempt to shift legal responsibility to each other. See supra text accompanying note "An Act Concerning the Protection of Automobile Dealers," P.A. No (1983)(to be codified at CONN. GEN. STAT (c)) CONN. GEN. STAT (c) (1983). Refunds are to be made "to the consumer and lienholder, if any, as their interests appear." Id Id (c) (1983). Representative Woodcock said that "in my interpretation of that language... any dealer prep charges, any other charges that are tacked on to the cost of the vehicle, including a sales tax, would be refundable." 25 H.R. Pnoc., pt. 10, 1982 Sess If a plaintiff wants to recover other incidental and consequential damages, he must sue under CONN. GEN. STAT. 42a (1983) for breach of warranty. See also id. 42a (1983); supra note See 25 H.R. PROC., pt. 10, 1982 Sess Representative Woodcock

22 BRIDGEPORT LAW REVIEW [Vol. 5:175 A reasonable allowance for use is defined in the Act as "that amount directly attributable to use by the consumer prior to his first report of the nonconformity to the manufacturer, agent or dealer and during any subsequent period when the vehicle is not out of service by reason of repair." 112 ' What is "reasonable" in such circumstances is vague and, therefore, it seems uncertain as to how this amount will be actually determined. If, despite any nonconformities, the plaintiff was able to drive his car during the dispute, he very likely may not get enough money from the manufacturer to purchase a new car. Because this seems somewhat inequitable given the stated goals of the Act, the better remedy would probably be a replacement vehicle instead of a refund. During passage of the bill the banking industry expressed concern over the possibility that a prevailing plaintiff might default on a bank note when he received his refund.' 13 Subsequently, an amendment was passed which declares that any refund shall be made to both the consumer and the lienholder as their interests arise. 1 4 Another 1983 amendment to the Connecticut Act pertains to the recovery of costs and attorney's fees by a successful litistated that since the manufacturer was the one responsible for the problem, it should have to refund the tax. Id. at 3145, He stated: "The manufacturer is responsible for the problem, he should make the consumer whole." Id. at He did concede that "ultimately a judge in the Superior Court might have to interpret the statute and our intent." Id. at Woodcock thought that "very clearly the legal burden would be on the manufacturer. It's an action between the manufacturer and the consumer. The State of Connecticut has no participation under the terms, the definitions of this particular piece of legislation." Id. at But Representative Smith (107th District) said that having the manufacturer lose the amount of the sales tax was to be a "major problem:" "We are really going to be dealing a death knell to an already dying industry in the State of Connecticut." Id. at A question asked by Representative Tripp (90th Dist.) was whether anyone would be liable for the sales tax on replacement vehicles, and if so, who would have to pay this amount. Id. at Woodcock stated that he was not in the position to answer whether this was a taxable event. The question would have to be decided by a court, but if the sales tax had to be paid on the new vehicle, the manufacturer would be the one to pay. "And if it was determined that it was a taxable event, then the manufacturer would be on the hook for that, too, because he is the party responsible for the whole problem in the first place." Id. at CONN. GEN. STAT. 42a-179(c) (1983) See 25 S. PRoc., pt. 9, 1982 Sess CONN. GEN. STAT (c) (1983).

23 1983] LEMON LAW gant." 6 This essentially makes it more practicable for a plaintiff to actually litigate if necessary, since it allows him to recover what is more in line with what he actually had to expend. This new amendment goes beyond awarding fees and costs for actions brought solely under the Connecticut Lemon Law. It states: In any action by a consumer against the manufacturer of a motor vehicle, or the manufacturer's agent or authorized dealer, based upon the alleged breach of an express or implied warranty made in connection with the sale of such motor vehicle, the court, in its discretion, may award to the plaintiff his costs and reasonable attorney's fees or, if the court determines that the action was brought without any substantial justification, may award costs and reasonable attorney's fees to the defendant. " ' A close reading of this amendment demonstrates how broad it actually is. It states that costs and attorney's fees may be recovered by a successful party, either the plaintiff or the defendant, in any action based upon a breach of the express or implied warranty, against the manufacturer, its agent or authorized dealer. Also, it does not limit the awarding of costs and fees to the owners of a new vehicle. Therefore, besides potentially providing recovery of costs and fees for an action brought under the Connecticut Lemon Law, the amendment also helps the auto consumer who finds it necessary to bring an action under any of the express or implied breach of warranty sections of the UCC.1 17 Representative Woodcock perceives the amendment as significant since it affords the consumer one more weapon against the manufacturer.i s It is his belief that a judge will be likely to award costs and fees to the plaintiff if the proper substantive criteria under the statute are met. 119 He expects that the amend "An Act Permitting Parties to Recover Costs in Automobile Breach of Warranty Actions," P.A. No (1983)(to be codified at CONN. GEN. STAT (2)) Id. (emphasis added) The UCC does not contain any provision for recovery of attorney's fees. See supra note 13. Under the Magnuson-Moss Act, 15 U.S.C. 2310(d)(2) (1976), the consumer, if he prevails, may be allowed to recover the amount of costs and expenses, including attorney's fees. See supra note Telephone interview with John J. Woodcock (July 26, 1983) Both the Magnuson-Moss Act and the attorney's fees provision of the Connecticut Lemon Law make recovery of attorney's fees speculative, even if the plaintiff finally prevails. See supra note 76 for a discussion of the attorney's fees provision of the

24 BRIDGEPORT LAW REVIEW (Vol. 5:175 ment will become effective enough to persuade auto manufacturers to negotiate a settlement instead of pursuing litigation.'" Although it is clearly an advantage to the automobile consumer that there are ascertainable standards which place the burden on the manufacturer to prove that an automobile is not substantially impaired and therefore not a lemon, the goal of the Lemon Law is not to encourage litigation. 12 ' Representative Woodcock has stated that "[t]he measure of success of our law will not be in the number of suits brought but in the number of satisfied car owners."122 Satisfaction is best attained by granting the automobile purchaser a prompt but complete remedy. Litigation is therefore not always the best answer. As a former chairman of the FTC has stated, "a lawsuit is frequently not a useful option for a person who needs immediate repairs for daily use. Most people do not want to become involved with lawyers and courts-they just want a resolution. '12 ' Therefore, the Connecticut Lemon Law contains a provision which states that before a refund or replacement vehicle can be given to a consumer, he must resort to a manufacturer's informal dispute settlement procedure, if the manufacturer has established one that complies in all respects with pertinent federal regulations." 2 4 In light of the goals of the Act, the Lemon Law will be most successful only if these dispute resolution procedures are actually established and properly maintained. As of yet, only some automobile manufacturers have responded to the suggestion 12 5 that Magnuson-Moss Act Telephone interview with John J. Woodcock (July 26, 1983) N.Y. Times, Jan. 30, 1983, 23, at 4, col. 6. "The true measure of success of the law is not litigation but lack of litigation. The whole rationale of the law is to make people cooperate and work together." Id Christian Science Monitor, Dec. 27, 1982, at 9, col Pertschuk, supra note 1, at CONN. GEN. STAT (0 (1983). See 16 C.F.R. 703 (1983). These are the same regulations that were developed for use under the Magnuson-Moss Act. See supra note 71 for a discussion of some of the requirements found under these regulations Telephone interview with John J. Woodcock (July 26, 1983). Although Chrysler and Ford have procedures that comply with Rule 703, the Better Business Bureau (BBB) is handling General Motors' (G.M.) consumer complaints. Woodcock stated that because G.M. is not complying with Rule 703, it is keeping consumers in the dark because the BBB's program is less than objective and therefore "fails miserably." Id. At the request of John Woodcock and the state attorney general, the FTC is looking into the BBB's program. Telephone interview with John J. Woodcock (Oct. 31, 1983). In the Hartford Courant, Aug. 2, 1983, at B9 (op ed page), Woodcock says that

25 1983] LEMON LAW they be established. Manufacturers which have set up dispute resolution procedures that comply with the Connecticut Lemon Law are those most perceptive to the concerns of the consumer. Although a settlement procedure involves rather high start-up costs, in the long term manufacturers may find that they have by such procedures increased new car demand. A potential auto consumer is more likely to purchase a car from a manufacturer which has established a settlement system which fairly resolves disputes than with a manufacturer which has not. One who establishes such a procedure would communicate full confidence in its product, as well as a willingness to allow the consumer a fair and non-litigious method by which to settle any dispute. A proposed amendment to the Magnuson-Moss Act had attempted to make these procedures mandatory in the entire automobile industry for resolving both express and implied warranty problems It is unfortunate that such an amendment was never actually adopted as part of the Magnuson-Moss Act, since ineffective warranties are a national problem and nationwide solutions are therefore needed. 127 If procedures cannot be mandated on the federal level, it consequently is necessary for the states to determine whether they should attempt to make such settlement procedures compulsory. But for a manufacturer to realthough the BBB serves its function well as a mediator between consumers and small businessmen, the Bureau does not have the capabilities.to deal with "a corporate giant." While it is free and non-binding for the consumer, the bureau program is an oral presentation putting the consumer against a battery of corporate officials. The process studiously avoids documentary evidence, discourages impartial technical input, avoids detailed record keeping and fails more often than not in resolving disputes within 40 days. Id. It is interesting to note that some manufacturers are reluctant to adopt this provision of the statute, since automobile industry representatives preferred that the Connecticut Lemon Law contain a provision for arbitration. See General Law Hearings, supra note 35, at 268, (remarks of Eugene Wagner of the Motor Vehicle Manufacturers Association; remarks of Joseph Nedrow, Regional Manager for G.M. in New England) See S. 1701, 96th Cong., 1st Sess., 125 CONG. REC. 22, (1979). This bill was proposed by Senator Howard M. Metzenbaum of Ohio. An amendment such as this had been suggested earlier by Michael Pertschuk as a way of making the Magnuson- Moss Act more effective. See Pertschuk, supra note 1, at Pertschuk, supra note 1, at 150. "[T]here should be one approach and one set of requirements for warranty performance, and not different ones for the companies to follow in each state." Id.

26 BRIDGEPORT LAW REVIEW [Vol. 5:175 alize that the states are determined to have manufacturers comply with these procedures, a plurality of states in agreement on this issue will be necessary. IV. CRITICISM OF THE ACT Not surprisingly, most criticism of the Lemon Law has emanated from manufacturers and their representatives. These two groups are of the opinion that the law is unnecessary since the consumer remedies already in existence are sufficient. 2 ' One critic of the law has stated that there are comparatively "few customers who are not satisfied with the handling of their vehicle problems," and that warranty repairs are not a significant problem in any event. 129 This statement is obviously not true; statistics have shown that automobiles have more warranty problems than any other consumer product. 1 0 Another dissenter has stated that the measure "was an emotional one and it fails to take into consideration that some car buyers are unreasonable in their demands and there is no way they can be satisfied...."i' However, this remark is clearly unfounded since the Act contains the requirement that defects must be substantial before a consumer can recover. It has also been stated that it is unfortunate that dealers have no responsibilities under the Act. 132 The counter argument, however, remains that if the consumer has a complaint against a specific dealer, he can sue under a different law. 13 The purpose of the Lemon Law was only to place responsibility on the manu See General Law Hearings, supra note 35, at 271 (remarks of Charles L. Spilman of the Motor Vehicle Manufacturers Association); Christian Science Monitor, Dec. 27, 1983, at 9, col. 2 (remarks of Mr. Spilman) See General Law Hearings, supra note 35, at 271 (remarks of Joseph Nedrow) See supra note See Christian Science Monitor, May 10, 1982, at 9, col. 3 (remarks of Frederick Brasius, president of the Connecticut Automobile Trade Association) Conn. L. Trib. No. 14, at 6, col. 1 (Apr. 4, 1983)(remarks of William H. Clendenen) Since the Connecticut Lemon Law does not limit the right to sue under any other law, CONN. GEN. STAT (e) (1983), the dealer can still be sued under the UCC for revocation of acceptance (see CONN. GEN. STAT. 42a and supra note 12) and breach of warranty (see CONN. GEN. STAT. 42a and supra note 13); under the Connecticut Unfair & Deceptive Trade Practices Act (CUTPA) (see CONN. GEN. STAT. 42a-11a to -l1q (1983)); and under the Magnuson-Moss Federal Warranty Act (see 15 U.S.C (1976).

27 19831 LEMON LAW facturer when the problem originated in the production process. By contrast, other critics are of the view that the law as it stands is not strict enough. One consumer lawyer in Connecticut thinks that there is still too much disparity in economic power between the consumer and the manufacturer, and therefore manufacturers have no incentive to cooperate.l As the law now stands, the only damages a manufacturer must potentially refund are the price of the car to the consumer and the consumer's attorney's fees. Accordingly, there is no meaningful incentive for a manufacturer to avoid litigation. 35 The same consumer lawyer therefore states that punitive damages would lessen this disparity in economic power and allow manufacturers to make their own decision as to whether settlement, or litigation with possible damages, would be the better course of action.' 3 6 V. CONCLUSION Whatever differences of opinion there are concerning the Connecticut Lemon Law, there is no doubt that it has proven to be a prototype for lemon laws in other states. As of October 6, 1983, seventeen other states have enacted their own versions of the Connecticut statute. Many other states are presently considering similar proposals. 3 7 The Connecticut Act has been in effect for approximately one year and there have been some tangible results. One of the means by which the impact of the law may be determined is to count the number of consumers in Connecticut who have received full refunds or replacement vehicles from the manufac Mr. Clendenen is of the opinion that results so far have been "terribly negative." He states that economic disparity is an overall consumer problem, but since automobiles are so expensive, the problem is especially great. Telephone interview with William Clendenen of Clendenen & Lesser, P.C. (Aug. 11, 1983) Id Nat'l L.J., July 4, 1983, at 42, col. 1. Although Connecticut was the first state to pass such a law, California was the first state to have one proposed to its state legislature. The bill was defeated by the California Senate in 1980, but an amended version of this bill, which contains language similar to the Connecticut Act, was passed on June 24, The California Lemon Law is codified at CAL. Civ. CODE (West 1983). For a comparison of the two state laws, see Note, Sweetening the Fate of the "Lemon" Owner: California and Connecticut Pass Legislation Dealing with Defective New Cars, 14 U. TOL. L. REv. 341 (1983) New Haven Journal-Courier, Oct. 6, 1983, at 22, col. 1.

28 BRIDGEPORT LAW REVIEW [Vol. 5:175 turer"' 3 As of October 1983, there have been at least forty such refunds or replacements. " 9 An alternative method by which to measure the impact is to assess the change in attitude of most dealers and manufacturers toward the consumer. Representative Woodcock feels that since the Act was passed these two groups have become more sensitive to the needs of consumers. In addition to the recent changes in market conditions,, this change in attitude may well be the result of the awareness of the applicable standards set out in the law. " " What the Lemon Law should accomplish at the very least is to make manufacturers realize that a consumer is not satisfied with anything less than a car that runs properly. In the final analysis, manufacturers may be surprised to find that as the consumer's position becomes strengthened their own position in the marketplace becomes strengthened as well. Mary A. Beattie 138. Telephone interview with John J. Woodcock (July 26, 1983) New Haven Journal-Courier, Oct. 6, 1983, at 22, col Telephone interview with John J. Woodcock (July 26, 1983).