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Lemon Law Update

Dussault v. Chrysler

The last case, Dussault v. Chrysler Corp.,²⁶ centered on what is a "comparable new vehicle" under Wis. Stat. section 218.015(2)(b)2.a., when a consumer who had purchased a demonstrator opts for replacement. Demonstrators and executive vehicles are included within the lemon law definition of a motor vehicle in Wis. Stat. section 218.015(1)(d), even though they are used. The issue in this case was whether Chrysler met its obligation to provide a "comparable new vehicle" by offering to replace a consumer's demonstrator with another demonstrator. The consumer maintained that only a brand new vehicle would fulfill the statutory obligation.

When Dussault first purchased her 1994 Eagle Vision demonstrator, it had 6,302 miles. The car came equipped with a six-cylinder engine, automatic transmission, leather seats, and had a suggested retail price of $25,787. Chrysler offered to replace it with a 1997 Eagle Vision demonstrator with 5,728 miles, a six-cylinder engine, automatic transmission, leather seats, and a suggested retail price of $26,290.

The court of appeals found that the meaning of "new" was unclear in the phrase "comparable new vehicle," because lemon law coverage includes demonstrators and executive vehicles, which are used vehicles. Turning to the purposes of the lemon law as articulated in Hughes, the court sought to place the purchaser back in the position he or she was when they bought the car.²⁷ The court ruled that Chrysler's offer of a comparably equipped demonstrator placed Dussault back into the position she thought she was in when she purchased the original car, and therefore the offer satisfied lemon law requirements. A demonstrator or executive vehicle need not be replaced with a brand new vehicle.

The only lingering question is the color purple. The court of appeals read "comparable" to mean "a similar model vehicle with similar features, such as the type of engine, transmission, brakes, seat upholstery and accessories."²⁸ At the second summary judgment hearing in this case, Dussault's attorney raised objection to the color of the replacement vehicle, claiming that purple was not "comparable" to the original emerald green. According to the attorney's affidavit, purple was unacceptable to his client. The court of appeals avoided ruling on the materiality of color, instead rejecting the argument because the attorney's affidavit was "nonevidentiary," and was therefore insufficient for summary judgment purposes. This let stand the circuit court's conclusion that the lemon law did not require an "identical" replacement vehicle.

Conclusion

These four recent cases demonstrate that the lemon law continues to be a vibrant, evolving area even 16 years after its passage. Each has added important elements of practical guidance in handling lemon law disputes.

Stephen J. Nicks, U.W. 1970, is an assistant attorney general in the Government Operations and Administrative Law Unit at the Wisconsin Department of Justice. He formerly directed the Office of Consumer Protection and has written previous lemon law articles published in the Wisconsin Lawyer. His views expressed in this article are his own and not of the Department of Justice or the Attorney General.

Endnotes

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¹ Hughes v. Chrysler Motors Corp., 197 Wis. 2d 973, 542 N.W.2d 148 (1996); see Fill 'Er Up, 69 Wis. Law. 24 (June 1996), for an in-depth discussion of Hughes.

² See A New Twist on Lemon Law, 64 Wis. Law. 23 (October 1991), for an overview of earlier Wisconsin cases interpreting Wis. Stat. section 218.015.

³ Wis. Stat. § 218.015.

⁴ Wis. Stat. § 218.015(1)(f) and (h).

⁵ Wis. Stat. § 218.015(2)(c).

⁶ Wis. Stat. § 218.015(7).

⁷ Wis. Stat. § 218.015(2)(c) and (cm)1.

⁸ Hughes, 197 Wis. 2d at 986, 542 N.W.2d at 153.

⁹ Wis. Stat. § 218.015(2)(b)2.b.

¹⁰ Church v. Chrysler Corp., 221 Wis. 2d 460, 585 N.W.2d 685 (Ct. App. 1998).

¹¹ Id. at 464-65, 585 N.W.2d at 687.

¹² Id. at 468, 585 N.W.2d at 688.

¹³ Id. at 469, 585 N.W.2d at 689.

¹⁴ Id.

¹⁵ Id.

¹⁶ Id. at 470, 585 N.W.2d at 689.

¹⁷ Id.

¹⁸ Schey v. Chrysler Corp., ___ Wis. 2d ___, ___ N.W.2d ___ (Ct. App. 1999) [decided May 26, 1999; ordered published June 30, 1999; No. 98-1277, 1999 WL 330377 (Wis. Ct. App.)].

¹⁹ See Wis. Stat. § 218.015(2)(a).

²⁰ Wis. Stat. § 218.015(1)(d). The court referenced Malone v. Nissan Motor Corp. in U.S.A., 190 Wis. 2d 436, 442, 526 N.W.2d 841 (Ct. App. 1994). Malone is interesting in that lemon law relief was denied for defects in a dealer installed, non-Nissan rear spoiler, because the "manufacturer did not design, engineer, manufacture, distribute, sell or advertise" the dealer add-on. Important to the majority in Schey was the control a dealer or manufacturer had over a demonstrator or an executive driven vehicle, contrasted with a privately owned or leased vehicle.

²¹ Wis. Stat. § 218.015(1)(b):

"Consumer" means any of the following:

1) The purchaser of a new motor vehicle, if the motor vehicle was purchased from a motor vehicle dealer for purposes other than resale.

2) A person to whom the motor vehicle is transferred for purposes other than resale, if the transfer occurs before the expiration of an express warranty applicable to the motor vehicle.

3) A person who may enforce the warranty.

4) A person who leases a motor vehicle from a motor vehicle lessor under a written lease.

²² Schey, 1999 WL 330377, at *4 (Wis. Ct. App.).

²³ Dieter v. Chrysler Corp., ___Wis. 2d ___, ___ N.W.2d ___ (Ct. App. 1999) [decided July 21, 1999; ordered published Aug. 17, 1999; No. 98-0958, 1999 WL 512107 (Wis. Ct. App.)].

²⁴ Malone v. Nissan Motor Corp. in U.S.A., 190 Wis. 2d 436, 526 N.W.2d 841 (Ct. App. 1994).

²⁵ Dieter, 1999 WL 512107, at *2 (Wis. Ct. App.).

²⁶ Dussault v. Chrysler Corp., ___Wis. 2d ___, ___ N.W.2d ___ (Ct. App. 1999); [decided July 7, 1999; ordered published Aug. 17, 1999; No. 98-0744, 1999 WL 459995 (Wis. Ct. App.)].

²⁷ Dussault, 1999 WL 459995, at *3 (Wis. Ct. App.).

²⁸ Id.