Florida/Georgia Personal Injury & Workers Compensation

...See, e.g., Florida's Motor Vehicle Warranty Enforcement Act., ch. 681, Fla. Stat. (2007); Magnuson-Moss Warranty Improvement Act, 15 U.S.C. § 2301-12 (1975). The Florida law, known as the "Lemon Law," imposes strict time constraints on manufacturers to respond to complaints and for case resolution. § 681.104, Fla....

...t the manufacturer is the subject of a separate appeal pending in this court as Maserati Automobiles, Inc. v. Caplan, Case Nos. 87-1163 and 87-1635. [3] Although the Lemon Law does contain fee provisions authorizing an award of fees to the consumer, § 681.104(5)(b), Fla....

...Pitsirelos experienced a problem closing the driver-side window and returned the vehicle to the dealership for repairs. After several failed attempts by the dealership to correct the problem, Pitsirelos provided written notification of the defect to Chrysler Corporation, the manufacturer of the vehicle, in accordance with section 681.104(1), Florida Statutes (1989), affording Chrysler a final opportunity to repair the vehicle....

...anufacturer, or its authorized service agent, during the Lemon Law rights period, the manufacturer, or its authorized service agent, shall, at no cost to the consumer, make such repairs as are necessary to conform the vehicle to the warranty.... [4] § 681.104, Fla....

...her chances of prevailing were more likely than not, thus entitling her attorney to an enhancement factor of 1.5. In this appeal, Chrysler first alleges that Weinstein's attorney, while statutorily entitled to attorney's fees based on the Lemon Law, § 681.104(5)(b), Fla....

...the shudder, constituted a nonconformity. 2. NOTICE One of the reasons stated by the lower court for directing verdicts for Porsche on the parties' lemon law claims was that the Notification was legally insufficient [3] to place Porsche on notice of the shudder. Section 681.104(1)(a), Florida Statutes (1991), provides in part: After three attempts have been made to repair the same nonconformity, the consumer shall give written notification, by registered or express mail to the manufacturer, of the need to re...

...al court's ruling. Under the Lemon Law, Caplan is entitled to recover the purchase price of the car, including all reasonably incurred collateral charges, upon proof that Maserati is unable to bring the car into conformity with its express warranty. § 681.104(2)(a)2, Fla....

...Dobbs, Remedies § 12.17, at 879 (1973) ("the buyer need not `elect' between getting his money back and getting damages for breach of warranty; he may, and quite appropriately, get both, since recovery of the price paid is no longer pinned to the theory of rescission."). Finally, § 681.104(2)(a)2, Fla....

...as caused by Kia's noncompliance with section 681.103(3), regarding a manufacturer's obligation to "inform the consumer clearly and conspicuously in writing how and where to file a claim with a certified procedure." He also alleged that Kia violated section 681.104(2), by not giving him the option of replacement or refund, and section 681.103(4), by not providing a "fully itemized, legible statement or repair order." The Chapter 681 count sought money damages, costs, and attorney's fees....

...The court ruled that because King no longer owned or possessed the Kia, he was not able to furnish clear title to and possession of the motor vehicle to the manufacturer, so that he was not entitled to the statutory remedy of refund or replacement under section 681.104(2)(a)....

...provided for in this chapter. § 681.101, Fla.Stat. (2000). For a nonconforming [2] vehicle that the manufacturer cannot conform to the warranty, the primary statutory remedy is either a replacement vehicle or a refund, at the consumer's option. See § 681.104(2)(a), Fla.Stat....

...An earlier version of the Lemon Law entitled consumers to a full refund or replacement, but rights under the statute "could only be enforced by filing suit in the appropriate court." Duane A. Daiker, Note, Florida's Motor Vehicle Warranty Enforcement Act: Lemon-Aid for the Consumer, 45 FLA.L.REV. 253, 255 (1993); see § 681.104(5)(a), Fla.Stat....

...88-95, Laws of Fla.; Daiker, 45 FLA.L.REV. at 255-56. One significant change was the creation of the Florida New Motor Vehicle Arbitration Board as part of a statutory procedure to secure the replacement/refund remedy described in sections 681.101 and 681.104(2)(a)....

...See § 681.1095(6), Fla.Stat. (2000). The statute authorizes a board to "grant relief, if a reasonable number of attempts have been undertaken to correct a nonconformity or nonconformities." § 681.1095(8), Fla.Stat. (2000). Consistent with the language *940 of section 681.104(2)(a), the "relief" contemplated by section 681.1095 is the "delivery of an acceptable replacement motor vehicle or the refund specified in the arbitration award." § 681.1095(9), Fla.Stat. (2000). The "relief" also includes "all reasonably incurred collateral and incidental charges ." § 681.104(2)(a), Fla.Stat....

...ures established by a manufacturer under section 681.108 or arbitration before the Board pursuant to section 681.109-681.1095. This preference is implemented by section 681.1095(4), which provides: Before filing a civil action on a matter subject to s. 681.104, the consumer must first submit the dispute to the [Division of Consumer Services of the Department of Agriculture and Consumer Services], and to the [B]oard if such dispute is deemed eligible for arbitration....

...*941 Section 681.112(1) uses the term "damages" and indicates that a prevailing consumer may recover "the amount of any pecuniary loss." When discussing the replacement/refund option, the statute uses the terms "refund," "replacement," "relief," and "compliance" with an arbitration decision. See §§ 681.104(2)(a), 681.1095(8) & (9), Fla.Stat....

...Section 681.112 thus allows for a Chapter 681 damages case in circumstances where a refund or replacement is not an option. Such circumstances might include: (1) a warranty violation under section 681.103 which does not rise to the level of a "nonconformity" under section 681.104 because it does not substantially impair the use, value, or safety of a motor vehicle within the meaning of section 681.102(16); (2) a violation of a provision of Chapter 681 other than sections 681.104 or 681.103, such as section 681.114, pertaining to the resale of returned vehicles; (3) where the refund/replacement remedy does not fully compensate the consumer, see Maserati Autos., Inc....

...[3] Third, Chapter 88-95, section 10 added section 681.112, which created a pecuniary remedy for consumers damaged by Lemon Law violations. We therefore hold that King's inability to "furnish to the manufacturer clear title to and possession of" the Kia under section 681.104(2)(a), did not, for that reason alone, bar a cause of action for damages under section 681.112....

...Those decisions indicate that when a vehicle is not available for return to the manufacturer, the consumer is not eligible for relief under Lemon Law arbitration. The only relief provided for in a Chapter 681 arbitration is the replacement/refund option plus collateral and incidental charges. See §§ 681.104(2)(a), 681.1095(8) & (9), Fla....

...se price plus collateral damages"). We have not considered any other issues in this case, such as whether King complied with section 681.1095(4) or the time limits of section 681.112(2); whether Kia had an "affirmative defense" to King's claim under section 681.104(4), Florida Statutes (2000); whether there was an enforceable express or implied warranty between appellant and Kia; or whether a provision of the federal statute or the terms of any warranty limit or condition recovery....

...e by persons other than the manufacturer or its authorized service agent. § 681.102(16), Fla.Stat. (2000). An earlier version of the statute defined a nonconforming vehicle to include a broader, more subjectively determined class of motor vehicles. Section 681.104(2)(a), Florida Statutes (1987), applied where a manufacturer was unable to repair or correct "any default or condition which impairs the use, market value, or safety of the motor vehicle to the consumer." (Italics supplied)....

...Regan described as "serious," "substantial," and "loud enough to impair the value of the vehicle." After several complaints by Sailing and corresponding unsuccessful attempts by Allison to alleviate the condition to Sailing's satisfaction, the parties went to arbitration pursuant to section 681.1095(4) of the Act. Section 681.104(2)(a) requires the manufacturer to conform the motor vehicle to the warranty or repurchase the vehicle....

...City of Jacksonville, 863 So.2d 380 (Fla. 1st DCA 2003), review denied, 876 So.2d 562 (Fla.2004); Sw. Ins. Co. v. Stanton, 390 So.2d 417 (Fla. 3d DCA 1980). This court must address another issue. It deals with the Lemon Law statute, which provides in section 681.104(2)(a): If the manufacturer ......

...A Lemon Law New Motor Vehicle Arbitration Board ruled entirely in Sanchez's favor, determining that his 2005 Chevrolet Equinox was indeed a lemon and ordering General Motors Corporation to give him all he claimed and could receive under the law, including a full reimbursement of the purchase price. See § 681.104(2)(a), Fla....

...Section 681.112(1) uses the term "damages" and indicates that a prevailing consumer may recover "the amount of any pecuniary loss." When discussing the replacement/refund option, the statute uses the terms "refund," "replacement," "relief," and "compliance" with an arbitration decision. See §§ 681.104(2)(a), 681.1095(8) & (9), Fla....

...Section 681.112 thus allows for a Chapter 681 damages case in circumstances where a refund or replacement is not an option. Such circumstances might include: (1) a warranty violation under section 681.103 which does not rise to the level of a "nonconformity" under section 681.104 because it does not substantially impair the use, value, or safety of a motor vehicle within the meaning of section 681.102(16); (2) a violation of a provision of Chapter 681 other than sections 681.104 or 681.103, such as section 681.114, pertaining to the resale of returned vehicles; (3) where the refund/replacement remedy does not fully compensate the consumer, see Maserati Autos., Inc....

...Burns, 914 So.2d at 454-455. Second, Forest River posits that Gelinas was required to seek recovery for his asserted attorney's fees and costs and pecuniary losses in the Lemon Law arbitration, because such claims are permitted by statute. For example, Forest River points to section 681.104(2)(a) which requires the refund or replacement of the "lemon" vehicle to take account of "all reasonably incurred collateral and incidental damages." See § 681.102(3), (8), Fla....

...Section 681.103 imposes a duty on the manufacturer (or its authorized service agent) to conform a vehicle to the warranty if the nonconformity is reported by the "consumer" within the "Lemon Law rights period." Section 681.102(4) includes lessees within its definition of "consumer," and section 681.104(2)(b) provides that when a vehicle does not conform to the manufacturer's warranty, "[t]he lessee shall receive the lessee cost and the lessor shall receive the lease price less the lessee cost." Finally, section 681.112(1) authorizes...

...ger the protections of the Lemon Law under a written warranty. See § 681.102(4), (9), (11)-(13), Fla. Stat. (2006) (including lessee within definition of "consumer" and providing definitions of "lease price," "lessee," "lessee cost," and "lessor"); § 681.104(2)(b), Fla....

...of Fort Lauderdale, 780 So.2d 937 (Fla. 4th DCA 2001). Land relies on the part of the opinion where this Court wrote that a section 681.112 action could be brought when "a warranty violation under section 681.103. . . does not rise to the level of a `nonconformity' under section 681.104 because it does not substantially impair the use, value or safety of a motor vehicle within the meaning of section 681.102(16)." Id....

...warranty. See § 681.103, Fla. Stat. (2002). If the manufacturer or its agent are unable to correct the nonconformities within a reasonable number of attempts, the consumer is entitled to a replacement vehicle or a refund of the purchase price. See § 681.104, Fla....

...[2] Because we conclude that BMW did have the statutory right to a final repair attempt after receipt of Singh's statutory notice, we reverse. On February 25, 1992, Singh leased a new $52,520.96 BMW 735i. Almost immediately, he began experiencing problems with the vehicle. On October 29, 1992, pursuant to section 681.104, Florida Statutes, Singh sent BMW a notice of continuing defects in the "air conditioning, brakes, transmission, decreased power in engine." The notice was received by BMW on November 2, 1992....

...After hearing testimony, inspecting and test-driving the vehicle, the Board rendered its decision in favor of Singh. The Board found that only the air-conditioner problem rose to the level of a defect constituting a "non-conformity" within the meaning of the statute. The Board then proceeded to find that, pursuant to section 681.104(3)(a), Florida Statutes, Singh's motor vehicle had been out of service by reason of repair of one or more non-conformities for a cumulative total of thirty or more days....

...Specifically, the Board found that the vehicle was out of service by reason of repair of the air conditioner between April 7 and May 1, 1992, June 3 through 10, 1992 and July 7 through 10, 1992. The Board also rendered a conclusion of law that: [T]he terms of section 681.104(1)(b) make no reference to a "final repair attempt" by the Manufacturer under the days-out-of-service standard. Only Section 681.104(1)(a), which relates to notice to Manufacturers under the repair attempts standard, contains a provision permitting a "final repair attempt" by the Manufacturer. In order to understand the nature of the dispute in this case, it is necessary to have very closely in mind the provisions of section 681.104. Reducing them as much as possible to the essential, the statute reads as follows: 681.104....

...to inspect, at the consumer's option, is not what the statute intended. Singh and the attorney general appear to find the argument for their interpretation of the statute in the differences in language between subsection (1)(a) and subsection (b) of 681.104....

...gument that it should have been given one final opportunity to repair the vehicle after it received written notice of the nonconformities. The majority holds that the trial court incorrectly interpreted the applicable statutory provisions, paragraph 681.104(1)(a) and subparagraph 681.104(3)(a)2. [1] , and that contrary to the trial court's conclusion, BMW was entitled to a final repair attempt. The parties agree that a manufacturer must be given a final repair attempt after receiving notice pursuant to paragraph 681.104(1)(a), the "three attempts to repair" procedure under which Singh did not prevail....

...he vehicle or that the nonconformity is the result of "an accident, abuse, neglect, or unauthorized modifications or alterations ... by persons other than the manufacturer or its authorized agent" or that the claim "was not filed in good faith." See § 681.104(4), Fla....

...st of the citizens of Florida. The Association of International Automobile Manufacturers, Inc. has filed an amicus curiae brief in support of BMW. [2] The form notice use by Singh referred to twenty days, but the statutory threshold is fifteen days. § 681.104(1)(b), Fla....

...[1] The Lemon Law provides two avenues for relief to an aggrieved consumer: The consumer may seek relief after three attempts have been made to repair the same nonconformity or relief may be sought after the vehicle has been out of service a cumulative total of 30 days to repair one or more nonconformities. See §§ 681.104(1)(a) and 681.104(3)(a)2.

...common and other laws. They argue that the record does not support the summary judgment resolving all claims in favor of the manufacturer. We agree and reverse, in part. Initially, we note that the consumers' claim for a replacement or refund under section 681.104 of the Lemon Law was first submitted to arbitration under the manufacturer's established procedure by "BBB Autoline," a program administered by the Better Business Bureau (BBB)....

COBB, Judge. The principal issue posed by this appeal is whether or not the plaintiff, Lewis Kling, was barred from recovery against Mercedes Benz of North America, Inc., because of the provisions of section 681.104(5)(a), Florida Statutes (1985): “(5)(a) Any action brought under this chapter shall be commenced within 6 months following expiration of the terms, conditions, or limitations of the express warranty or within 18 months following the...

...On September 3, 1987, Kling filed an action for damages, including a count under Chapter 681, Florida’s “lemon law,” which provides for an award of attorney’s fees to a consumer who “finally prevails in any action brought under this chapter.” See § 681.104(5)(b), Fla.Stat....

...By way of background, the Musacchias leased a new Jeep Commander in 2006. After experiencing numerous problems with the vehicle, they filed a request for arbitration with the Lemon Law New Motor Vehicle Arbitration Board, contending the vehicle was a "lemon" and requesting a refund. See § 681.104(2)(a), Fla....

...After three attempts to repair the nonconformity, the consumer is required to give the manufacturer written notification of the need to repair the nonconformity and a final opportunity to cure it. The manufacturer must respond and give the consumer the opportunity to have the vehicle repaired. § 681.104(1)(a), Fla....

...If the manufacturer or service agent is unable to fix the nonconformity after a reasonable number of attempts, it must repurchase the motor vehicle and refund the full purchase price to the consumer or provide the consumer with an acceptable replacement vehicle. § 681.104(2)(a), Fla....

...r,” but "delivery” — must refer to the first or "original” transfer of a new defective vehicle to the purchaser, rather than any of the successive redelivery-after-attempted-repairs which the statute requires to try to sweeten the Lemon. See § 681.104, Fla....

...10 - 681.108 , F.S. (1984 Supp.), popularly known as the `Lemon Law,' sets forth the circumstances under which consumers may bring an action to obtain certain remedies where a motor vehicle does not conform to applicable express warranties. See , ss 681.104 , F.S. However, s 681.108 , F.S. (1984 Supp.), provides in pertinent part as follows: If a manufacturer has established an informal dispute settlement procedure which complies with the provisions of 16 C.F.R. pt. 703, the provisions of s. 681.104 do not apply to any consumer who has not first resorted to such procedure. See also , s 681.104 (5)(a), F.S....

...e or the repurchase of the nonconforming motor vehicle exclusive of any other course of action as the result of any decision of the panel. However, where a consumer has first resorted to informal dispute settlement procedures if s 681.108 applies, s 681.104 (2), F.S....

...r the motor vehicle as provided for in subsection (1),' and such attempts have failed or `[t]he vehicle has been out of service by reason of the repair of one or more nonconformities by the manufacturer, or its agent' for a specified period of time. Section 681.104 (3), F.S. (1984 Supp.). Thus, s 681.104 (2) appears to require certain action by the manufacturer irrespective of the decision of any informal dispute settlement procedure resorted to by the consumer provided only that the manufacturer or its agent `cannot conform the motor vehicle to any applicable express warranty by repairing or correcting any default or condition which impairs the use, market value, or safety of the motor vehicle to the consumer. . . .' By the express terms of s 681.104 (5)(a), F.S....

...Thus, while it appears that a manufacturer is not required to offer the consumer the option of either a comparable or replacement vehicle or the repurchase of the nonconforming motor vehicle as the result of a decision by the informal dispute settlement procedure mechanism or panel, the provisions of s 681.104 (2) and (3), F.S. (1984 Supp.), grant certain rights to consumers which may be enforced in an action brought within 90 days of final action of an informal dispute settlement procedure panel, if applicable, pursuant to s 681.104 (5)(a) and s 681.108 , F.S....

...t vehicle or the repurchase of the nonconforming motor vehicle, exclusive of any other course of action, as the result of a decision by the informal dispute settlement procedure panel where s 681.108 , F.S. (1984 Supp.), applies, the provisions of s 681.104 (2) and (3), F.S....