Vol. 75, No. 3, March
Accessories Under the Lemon Law
While the Lemon Law defines neither "accessories" nor "components,"
read how recent cases involving them have interpreted the Lemon Law to
balance fairness to manufacturers with the availability of consumer
by Stephen J. Nicks
ention accessories to a district attorney, and parties to
a crime come to mind. Mention accessories to my college-age daughters,
and fashion comes to mind. But mention accessories in the context of
Wisconsin's Lemon Law, then rear spoilers, rust-proofing, and even tow
truck mechanisms are the items at issue.
For varying reasons, the inclusion of accessories is significant
to the sale of many new motor vehicles. Some people just love to dress
up their cars or trucks with accessories such as hood bras, door edge
guards, vent shades, bumper guards, and so on. Some dealers just love to
add on a pile of accessories, and then price them generously to make it
appear that the buyer is getting a bigger discount or a higher trade
Three reported Lemon Law cases have dealt with motor vehicle
"accessories," including, most recently, Kiss v. General Motors
Corp.1 Interestingly, the Lemon Law2 contains no reference to "accessories" and
therefore no definition. As used in these cases, however, an accessory
is a dealer furnished item that is included in the purchase contract and
installed before the vehicle is delivered to the consumer. The Lemon Law
mentions "components" but leaves that term undefined.3 This article shows how the case law has evolved to
deal with dealer installed accessories and posits how "components"
should be distinguished and treated.
Malone v. Nissan Motor Corp.,4
Dieter v. Chrysler Corp.,5 and
Kiss v. General Motors Corp.6 all
focused on how the Lemon Law should be applied to various motor vehicle
accessory situations. The accessories in these cases ranged from a rear
spoiler on a car (Malone), to fender shields and rust-proofing
(Dieter), to a tow unit installed on a tow
truck (Kiss). In Malone and Kiss, the
accessories were not manufacturer approved or warranted; in
Dieter, the accessories were manufacturer approved and
Reading these three cases together, there is a clear coverage matrix
1) Dealer installed, nonmanufacturer approved items.
a) Defects in the accessory. For nonmanufacturer approved
accessories, if the accessory itself - a rear spoiler or tow unit - is
defective the buyer is not entitled to Lemon Law relief. The buyer may
only look to the accessory's manufacturer/warrantor for relief under
traditional UCC or Magnuson/Moss Warranty Repair Act theories.7
b) Defects in the vehicle. If the vehicle to which the
nonmanufacturer approved accessory is attached is a lemon (with no
defect in the accessory), the consumer is entitled to Lemon Law relief
covering not only the vehicle but also the accessory. The consumer can
choose a refund or replacement of the vehicle.8 If a refund is chosen, the vehicle manufacturer
must include the cost of the accessories in the refund amount, and if a
replacement is chosen, the manufacturer must install new after-market
accessories. This is the case even though the accessories were dealer
installed and not approved by the manufacturer.
Kiss involved this latter situation. Kiss had purchased a
GMC Sierra 3500 HD tow truck cab and chassis to which the dealer
attached a "Vulcan" tow unit, which General Motors did not manufacture
or warrant. There were defects in the vehicle and Kiss was awarded a
comparable new motor vehicle9 by the General
Motors certified dispute settlement mechanism (BBB-Autoline). General
Motors took this ruling to mean that it could furnish a new cab and
chassis and transfer the now used after-market towing unit to the new
vehicle. The Kiss court rejected this solution, finding that
the policy articulated by the supreme court in Hughes v. Chrysler
Motors Corp.10of placing consumers in
the same position as they thought they were at the point of sale
mandated that General Motors also supply a new tow unit, even though it
did not manufacture or warrant the tow unit in the first place.11
2) Dealer installed, manufacturer approved
items. a) Defect in the accessory.If problems with
manufacturer approved accessories are sufficient to trigger the Lemon
Law - four attempted repairs or 30 days total out of service - a
consumer is entitled to choose replacement or refund covering the whole
b) Defect in the vehicle. If the qualifying defect is to the
vehicle itself, the Lemon Law mandates refund or replacement of the
vehicle and the accessories.13
The Malone, Dieter, and Kiss decisions all
focused on the treatment of "accessories." The sleeping giant yet to be
dealt with at the appellate level is how to treat "components" under the
What is a "component" and how is it distinguished from an
"accessory?" The only time "component" is mentioned in the Lemon Law is
in the definition of nonconformity in Wis. Stat. section 218.0171(1)(f).
While component is not itself defined, it is apparent from the context
of the statute that a component is an integral part of a motor vehicle
installed by the manufacturer. The simplest way to focus the component
analysis is to use the engine as an example. Many vehicle manufacturers
do not manufacture their own engines. Instead, they install those made
by others. Their makers (Caterpillar or Detroit Diesel, for example)
then separately warrant these engines directly to the buyer, and the
vehicle manufacturer specifically excepts the engine from its warranty
covering the rest of the vehicle.
What happens in terms of Lemon Law relief if such an engine is
defective? Case law has settled half of the equation: the engine
manufacturer is not liable for Lemon Law remedies, because it is not a
"manufacturer" as defined by the Lemon Law. In Harger v.
Caterpillar,14 the court of appeals
held that a manufacturer of component parts of a motor vehicle that
ships the completed part to the vehicle manufacturer is not liable under
the Lemon Law. This decision arose from peculiar facts. The plaintiff
had purchased a Peterbilt truck with a Caterpillar engine. The engine
was alleged to be defective and the plaintiff sought Lemon Law relief
against Peterbilt. The plaintiff then voluntarily dismissed the action,
and two years later began a new action against both Peterbilt and
Caterpillar. Peterbilt was dismissed on res judicata grounds, and only
the Lemon Law claim against Caterpillar was actively litigated, which
resulted in the half a loaf analysis by the court of appeals.
Harger did not reach whether the vehicle manufacturer was
Vehicle manufacturer liability for components was tangentially
discussed in Kiss, but its resolution remains. In
Kiss, the court of appeals rejected General Motors' sweeping
contention that a vehicle manufacturer cannot be held responsible for
parts it did not manufacture or warrant, saying that the contention was
too broad and failed to consider the underlying Lemon Law policy
concerns.15 Even though Kiss
involved a dealer-added accessory and not a component like an engine
installed by a vehicle manufacturer, this language foreshadows the
proper result for components.
The analysis of a component is necessarily different from that of an
accessory because of the statutory reference to components and the
legislative history of that reference. The heart of the Lemon Law is its
definition and use of "nonconformity" as the trigger for relief. Section
218.0171(1)(f) of the Wisconsin Statutes defines "nonconformity" as a
"defect which ... is covered by an express warranty applicable to the
motor vehicle or to a component of the motor vehicle."
(Emphasis added.) As originally passed in 1983, the Lemon Law defined
nonconformity only in the context of a defect covered by an express
warranty applicable to the motor vehicle.16
In 1985, this definition was expanded to its present form by also
including defects covered by an express warranty applicable to "a
component of the motor vehicle."17
The explicit addition of components to the definition of
nonconformity came as Assembly Amendment 7 to 1985 Assembly Bill 434.
Rep. Vernon W. Holschbach, A.B. 434's sponsor and the main proponent of
the original Lemon Law, shed considerable light on both the intent of
the amendment and the vehicle manufacturer's responsibility under the
Lemon Law, in a memorandum he authored on Oct. 29, 1985, addressed
to the Senate Judiciary and Consumer Affairs Committee. The
first paragraph of the memorandum states the bill's purpose: "I
have introduced this bill because my monitoring of the new law since its
passage in the 198385 session indicates that some sections of the law
should be strengthened."
The last bullet point in the Holschbach memorandum captures its
"• Even though large trucks may be assembled from parts from
numerous suppliers, I have always felt that liabilities for faulty
components can be worked out between the manufacturers of the truck and
the component supplier. What's more, I think it is all the more
important in cases like these, for the consumer to have an identifiable
responsible manufacturer that he or she can seek relief from."
When the Wisconsin Legislature expanded the scope of nonconformity
with the 1985 amendment, significantly, it let the vehicle
manufacturer's responsibility under Wis. Stat.
section 218.0171(2)(b) remain the same. "[T]he manufacturer," under
Wis. Stat. section 218.0171(2)(b) "shall carry out the requirement under
subd. 2. or 3." (replacement or refund) "[i]f after a reasonable attempt
to repair the nonconformity is not repaired." If the legislature wished
to limit the vehicle manufacturer's responsibility for nonconformities
under Wis. Stat. section 218.0171(2)(b) to just those covered by the
vehicle manufacturer's own express warranty when it expanded the scope
of section 218.0171(1)(f) to include component warranties, it could
have done so quite simply. It did not. To the contrary, the legislative
intent was to give "the consumer ... an identifiable responsible
manufacturer that he or she can seek relief from." If the engine
manufacturer has no Lemon Law responsibility, responsibility must
necessarily lie with the vehicle manufacturer. This conclusion was
reinforced when the legislature made changes to the definition of
manufacturer in 1999 Wis. Act 31 and did not include component parts
manufacturers as liable under the Lemon Law.18
This legislative history also is perfectly consistent with the public
policy concerns in Harger, in which the court balanced
effecting consumer relief (the usual liberal construction of the Lemon
Law) with fairness to component manufacturers. Harger found it
"made no sense" to saddle component manufacturers with the entire Lemon
Law financial risk when the engine cost was less than 20 percent of the
total vehicle value.19
Vehicle manufacturers should be held liable under the Lemon Law for
defects in components they assemble into their vehicles. Unlike the
concern in Malone about making vehicle manufacturers
responsible for shoddy accessories they did not approve,20 components are chosen and installed by the vehicle
manufacturer. The express language of the Lemon Law, its legislative
history, and the overriding public policy to provide a remedy for
vehicle purchasers strongly indicate vehicle manufacturer liability for
1 Kiss v.
General Motors Corp., 2001 WI App 122, 246 Wis. 2d 364, 630 N.W.2d
2 Wis. Stat.
3 Wis. Stat.
4 Malone v.
Nissan Motor Corp., 190 Wis. 2d 436, 442, 526 N.W.2d 841
(Ct. App. 1994).
5 Dieter v.
Chrysler Corp., 2000 WI 45, 234 Wis. 2d 670, 610 N.W.2d 832.
2001 WI App 122.
8 Wis. Stat.
§ 218.0171(2)(b)2.a., b.
9 "Comparable new
vehicle" is the language of Wis. Stat. section 218.0171(2)(b)2.a. The
actual decision of the BBBAutoline used "substantially identical."
Kiss, 2001 WI App 122, ¶ 19.
10 Hughes v.
Chrysler Motors Corp., 197 Wis. 2d 973, 982, 542 N.W.2d 148
Kiss, 2001 WI App 122, ¶ 17.
14 Harger v.
Caterpillar Inc., 2000 WI App 241, 239 Wis. 2d 551, 620 N.W.2d 477.
See also Wis. Stat. § 218.0171(1)(c).
Kiss, 2001 WI App 122, ¶ 15.
16 Wis. Stat.
§ 218.015(1)(f) (1983-84).
17 Wis. Stat.
§ 218.015(1)(f) (1985-86).
18 1999 Wis. Act
31 (Senate Bill, enacted April 4, 2000).
Harger, 239 Wis. 2d at 557.
Malone, 190 Wis. 2d at 442.