Articles Posted in Lemon Law

Almost every new car has a couple of kinks that need to be fixed, but after you have a few miles on your new vehicle, you expect it to run like a charm – and it should. But what can you do when your new ride has a serious defect and the dealer can’t (or won’t) fix it? Under Indiana lemon law, you do have rights. Sergei Lemberg, an attorney specializing in lemon law, offers an overview of our lemon law, and tips to preserve your Indiana lemon law rights.

Q: What vehicles are covered under the lemon law in Indiana?

Sergei: Indiana’s lemon law covers new passenger vehicles, SUVs, vans, and trucks with a gross vehicle weight rating of less than 10,000 pounds. It also covers used vehicles that are sold during the new car warranty period.

Q: I purchased a new car six months ago. The gas mileage is horrible. I am probably getting 75% of what I’m supposed to get. I’ve taken it in to the dealer and reported this problem many times, and they just tell me they can’t find anything wrong. Do I have a lemon?

A: With gas prices what they are today, everyone is paying more attention to their gas mileage. If you’re not getting the mileage you expected, there’s a reason: no one else is either. That’s because the mileage figures posted on the window of a new car are ESTIMATES prepared by the EPA. They are usually quite inflated because they are based on a formula from 20 years ago that reflects perfect driving conditions and doesn’t take into account raised speed limits, traffic conditions, weather, individual driving styles and the like.

Thankfully, the EPA is revising its formula for gas mileage estimates on its 2008 models. These figures should be more realistic and should reflect more accurately real life mileage figures for all 2008 new vehicles.

So far in this series, we have determined that the Indiana Motor Vehicle Protection Act, Indiana’s lemon law, is the least consumer friendly of our neighboring states’ lemon laws with regard to: the deduction the manufacturer receives for the mileage on a vehicle in a buyback situation (Part 1) and the kind of vehicles to which the law applies (Part 2). This time, let’s take a look at what’s called the “term of protection,” which is the period of time the law applies following a new car purchase.

Indiana’s lemon law is straightforward. Indiana Code 24-5-13-7 states that the term of protection begins on the date the vehicle is delivered to the buyer, and expires eighteen months from that date or when the car has been driven 18,000 following delivery, whichever comes first. Fine, you say, but what has to happen within the term of protection? Does my lemon lawsuit have to be filed within that time? No, it does not.

Indiana Code 24-5-13-8 makes it (mostly) clear that if the buyer first reports the particular repair issue within the term of protection, then the vehicle can subsequently be deemed a lemon based on that particular repair issue even though the vehicle actually becomes a lemon (four unsuccessful repair attempts or 30 or more days out of service) outside the term of protection. So it’s only critical that the repair issue manifest itself within the term of protection (and get reported to the dealer). Then, the only other limitation is that the lemon lawsuit be filed within two years of the first repair attempt.

In Part 1 of this series, we compared the “reasonable allowance for use” provisions of Indiana’s Motor Vehicle Protection Act (Indiana’s “lemon law”) against Indiana’s neighboring states’ lemon laws and found that Indiana’s lemon law was the least favorable for consumers. In Part 2 of this series, I’d like to compare these lemon laws based on the kinds of vehicles to which they apply.

Indiana law reads:

Indiana Code 24-5-13-5 Sec. 1 5. As used in this chapter, “motor vehicle” or “vehicle” means any self-propelled vehicle that:

In Part 1a, we looked at how Indiana law handles the “reasonable allowance for use” calculation and how it encourages manufacturers to delay the resolution of claims. Let’s take a look at how some of our neighbor states handle reasonable allowance for use:


The Illinois statutory provision reads: “A reasonable allowance for consumer use of a vehicle is that amount directly attributable to the wear and tear incurred by the new vehicle as a result of its having been used prior to the first report of a nonconformity to the seller, and during any subsequent period in which it is not out of service by reason of repair.” Surprisingly, it does not appear that this provision has ever been interpreted, at least in a published opinion, by an Illinois appellate court. Since I don’t practice in Illinois, I can’t say how they put this provision into practice, but I believe I’ve heard that they often use the IRS mileage reimbursement figure.

I recently read an article about the Tennessee Division of Consumer Affairs’ lemon law website. Apparently that website had incorrect information about Tennessee’s lemon law up for about four years! Tennessee’s lemon law was amended in 2003 to require three instead of four repair attempts and 15 instead of 30 days out-of-service, but the information on the website was never changed. Duuoohhhh!

Anyway, this got me thinking about how Indiana’s lemon law compares to other states’ lemon laws. Rather than comparing the entire statutes in broad terms, let’s get down to the nitty gritty and compare specific provisions. This is Part 1, of what will hopefully be a series, comparing certain provisions of Indiana’s lemon law to the corresponding provisions in other states’ lemon laws. My general, relatively uneducated impression is that Indiana’s lemon law is among the least consumer friendly in the nation, but I guess we’ll see.

In my opinion, one of the harshest provisions in Indiana’s lemon law is the manufacturer’s reimbursement for “a reasonable allowance for use.” The basic premise is that if the lemon purchaser wants his or her money back, the manufacturer should be entitled to deduct from that refund a reasonable allowance for the mileage the purchaser put on the vehicle. On it’s face, this seems reasonable, but there is a problem with the way this reasonable allowance is calculated under the statute that, in some situations, makes it unfair to Indiana consumers.
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I attended the Indiana Lemon Law continuing legal education seminar last week. The seminar was put on by two attorneys of the Law Offices of Connie J. Postelli, Connie Postelli and Rebecca Letourneaux, and a mediator Ms. Postelli uses a lot named Paul Petticrew. Ms. Postelli’s firm represents General Motors all over the States of Indiana and Illinois and Ford Motor Co. in Northern Indiana.

Interestingly, the seminar was titled: “PLEASE Sue My Clients for Violation of the Indiana Lemon Laws (And get your fees paid too!).” It was very informative and all presenters did a good job of relaying the basics of lemon law in Indiana. Ms. Postelli spent a significant amount of time talking about the disservice the Internet Boys (her term for the big out-of-state Internet lemon law firm currently representing around 90% of all lemon law plaintiffs in the state) were doing to their clients, the reputation of lawyers and the practice of law in general.

Having practiced against this “law firm” in the past, I would have to wholeheartedly agree. Their practice is built on volume, and because of this, individual attention to each client is intentionally kept to a minimum. Ms. Postelli noted that this results in a multitude of problems, from clients with unrealistic expectations, to attorneys who don’t know their client’s case, to clients who are dissatisfied with their entire experience with the judicial system.

Attorneys who practice lemon law in Indiana may want to attend a seminar on the subject on February 22, 2007. The continuing legal education seminar is put on by ICLEF and will be held at ICLEF’s Conference Facility located at 230 E. Ohio St. in Indianapolis. The faculty of the half-day seminar is comprised of two defense lawyers and a mediator.

I do not recall another lemon law seminar in Indiana, so it’s interesting to see that lemon law as a practice area has developed enough to support such a seminar. Still, I can’t imagine there will be that many attorneys in attendance.

For those interested, you can contact ICLEF at 317-637-9102. The seminar cost is $185 for non Indiana State Bar Association members, or $135 for members. I’ll see you there!

Over and over again I have personally witnessed a lemon law plaintiff tear up or actually begin to cry while recounting the numerous repairs involved with their vehicle. Back when I defended lemon law cases, I can recall being amazed at how emotional these people became. I understood that numerous time-consuming trips to the dealership, sometimes for the same thing over and over again, could be very frustrating. But sometimes the reaction seemed to go beyond that…

A recent AP-AOL Autos poll emphasizes how much our car means to some of us. The Indianapolis Star reported the following summary of poll results:

GENDER DIFFERENCES: Women, 26 percent, were more likely than men, 16 percent, to have nicknames for their cars. Unmarried women, 30 percent, were more likely than men or married women to give their cars nicknames. Nearly four in five, 78 percent, said they enjoy driving, while 20 percent consider it more of a bother. Women were more likely than men to think of their cars as female – 27 percent to 19 percent. Almost half of women, 44 percent, said they have thought their car had a personality of its own, compared with 30 percent of men. Over half, 55 percent, of single women said they have thought their car had a personality of its own, compared with 36 percent of married women and 33 percent of single men.

As 2006 comes to a close, I thought I would take a look back at Indiana’s courts of appeal opinions on the Indiana Motor Vehicle Protection Act, also known as Indiana’s lemon law. Actually, there wasn’t much. There was only one published opinion dealing with Indiana’s lemon law.

On November 2, 2006, the Indiana Court of Appeals decided the case of Walker v. DaimlerChrysler Corporation. William Walker, though not apparently an employee of DaimlerChrysler, purchased the truck at a discount under DaimlerChrysler’s Employee New Vehicle Purchase/Lease Program (remember the “buy at the price our employees pay” advertising?). In exchange for the employee discount, Mr. Walker signed an agreement giving up the right to file a lawsuit and instead submit to binding arbitration.

After the trial court dismissed his lawsuit, Mr. Walker appealed. Whether the Magnuson-Moss Warranty Act and Indiana’s lemon law allowed sellers to make mandatory binding arbitration part of sale was an issue of first impression in Indiana. The Indiana Court of Appeals, following the majority of states but going against the Federal Trade Commission’s explicit opinion, first found that the Magnuson-Moss Warranty Act does not prohibit mandatory binding arbitration.
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