In several of my articles I have discussed the importance of compliance with warranty or “lemon laws” in your particular state and given numerous examples of ways to make sure your service department is in compliance. However, one of the most overlooked facets of these laws is the “days out of service” component. Most state lemon laws have a component that creates a presumption that a vehicle is a lemon if the vehicle is out of service more than a certain amount of days. In Florida that amount is 30 days, however, this number varies from state to state. Some other state statutes, and some state’s interpretation of federal warranty laws such as the Magnuson-Moss Warranty Act, also find that if a vehicle had been “out of service” a certain amount of days the dealer or manufacturer may be liable for a breach of warranty or statutory violation.
The terms “days out of service” is generally defined as any days that the vehicle was in the possession of a dealer for repairs to an item covered under warranty. Typically most statutes, courts, and arbitration boards do not count as days out of service any days where the vehicle was left on lot because of acts by the consumer unrelated to the repair, i.e. the consumer’s vehicle was finished, but they waited additional days to pick the vehicle up. Also routine maintenance visits are typically not counted as days out of service.
While the case law and statutes typically find that the “days out of service” is a presumption that can be overcome by offering evidence that it was reasonable for the repairs to take longer than the prescribed amount of days, in reality if a vehicle is out of service for longer than the prescribed amount typically manufacturer or dealers do not prevail. This creates a dilemma for many service departments as a major overhaul of an engine for example can take longer than 30 days in some circumstances. Also a delay in receiving parts can sometime cause delays in repair time. However there are a few things you can do to prevent issues relayed to days out of service.
First, it is very important that all repair orders are carefully documented to contain the correct beginning and ending dates. Repair order should not be left open while awaiting an ordered part. Instead, when possible, the vehicle should be returned, the repair order should be closed and a new repair order should be created when the vehicle is brought back in for the installation of the part. If this is not possible because the issue could create a safety concern the repair order should be notated as to when the part was ordered, when it arrived and when the part was actually installed. Also, if there is the potential for days out of service to be an issue, whenever the option is available, a dealer should pay to have parts overnighted or for expedited shipping. While this may be expensive, the shipping charge will pale in comparison to the damages and legal fees a consumer may receive in a lawsuit.
Also, always notate on a repair order when repairs are completed, when the consumer is notified that a repair is completed, and how you contacted the consumer. If the consumer is provided with a rental or loaner vehicle this should also be notated on the repair order and any related documents should be attached. Technicians should also be highly encouraged not to allow vehicles to sit or for repairs to be put off. This sounds simple, but where an extra day or two to make a minor repair may sound insignificant at the time, it could end up making the difference between 29 days out of service of 31 days out of service (which would be very significant in many states).
Perhaps most important is if a major repair is necessary a realistic estimate of the time required needs to be established early on. If it appears days out of service is a potential issue then this should be immediately addressed with the service manager, general manager, and/or your manufacturer representative. Many times a proactive approach in handling a consumer and keeping him satisfied can avoid a lawsuit all together with. However if it appears that litigation is unavoidable or even a possibility it is always best to consult with your attorney regarding your potential liability in your state and any additional steps you might be able to take to protect yourself.