Small Claims Special Topics: Auto Repair

There are three common auto repair problems which, if they arise, may lead to litigation or a lawsuit at a later date. First, if the car is repaired and then the car malfunctions and causes some type of accident or damage or personal injury. If this happens, you should immediately contact your Plan Attorney, if you are a member, and inform him/her of the repairs. Repairs may not always be the cause of an accident, but the Plan Attorney should have this information. If there is damage and even minor injuries you should consult your Plan Attorney immediately.

Second, if repairs were made which were not requested. State law may allow you to be free from payment for such repairs if they are made without your approval, and if they exceed any estimates. Do not succumb to pressure from the mechanic, but do keep in mind the strategies mentioned previously, as a means of protecting yourself from even getting in this situation.

The third common problem is if you are charged a higher amount than the mechanic promised. For example, if a mechanic says "I can fix the problem for $200 and you get there and the bill is $300, what should you do? If you have followed the advice given previously in this discussion, this problem will likely not have happened. Assuming you made other choices, however, the first thing you should do is to examine, with the mechanic, the reasons for the increased bill. Since the mechanic had agreed to fix the problem for $200, you already have a contract. [Remember, an estimate is not an agreement.] Thus, you are likely on solid legal ground, and the mechanic may be forced to incur the extra $100 charges.

As you might expect, the mechanic will not be pleased with any refusal to pay, and the mechanic will likely have more information than you about the problem and its repair. Expect this and be prepared. You can do this by calling around and describing the problem to another mechanic(s) and see what the likelihood is of repairing the problem for the cost stated. Also, you might inquire about any problems which may be related to this problem and the costs to fix those problems.

You may wish to use this information, or even call the mechanic from whom the second opinion came, to help to convince the first mechanic that the charges are too high and the extra $100 was unnecessary.

Assuming none of this works and the mechanic still insists on full payment, state laws often give mechanics the right to impose liens on your car, and sometimes the right to keep and store your car [at your cost] until the bill is paid. To determine whether these laws are in effect in your state, call either the local branch of the state consumer affairs department or your Plan Attorney. You may want to retain your Plan Attorney to assist you in this matter, but remember, the costs in having an attorney may quickly add up to exceed the cost of repairs.

Once you have refused to pay the extra amount owed, the mechanic is entitled to a mechanic's lien. The procedures which must be followed with respect to this lien are governed by state law. It is important to obtain a list of these procedures, so that you can determine whether the procedures have been followed. Again, your Plan Attorney can assist you in understanding these procedures, but it may not be worth the cost of retaining him/her. The purpose of the free consultation is to allow you to investigate whether a Plan Attorney can help, and if so what the costs would be.

In some states, this lien will allow the mechanic to actually retain your car if you do not pay the full bill. You should keep in mind that many states will allow a mechanic to follow the lien procedures, including keeping your car. However, the law may subject them to serious consequences if they are incorrect in following procedures, or if they are wrongful in their conduct. For example, some states allow you to sue to recover the extra amount which was to be paid, and to recover punitive damages from the mechanic if the mechanic's conduct was reckless or willfully designed to cause you harm. This standard is decided by a judge in Small Claims, and the mere fact that the car was kept is not enough to allow you to recover. As indicated above, you should be realistic in your assessment of damages, so that you can decide whether to sue.

If you want to avoid the storage costs associated with a lien, another option is pay the difference under protest, get your car, record your protest in writing, both on the bill (including the garage copy) and on your check. This will relieve you from the hassles of impound and storage and extra charges which the state law may require you to pay. Once you have obtained your car, you can then bring an action in Small Claims Court for the difference, following the advice given in the preceding tapes.

A common reaction to this problem is for a person to write a check for the billed amount and then shortly after receiving the car, stop payment of the check to the mechanic. The problem with this solution is that it may be illegal, depending upon your state law. Stopping payment on a debt which is owed is, in most cases, illegal and may result in a prosecution for theft. In our example, the mechanic is owed the $200, even though you may not owe the additional $100. As soon as you stop payment on the check, you may have deprived an owner of his/her property without his/her consent, and you may fall under the definition of a criminal theft.

You may feel that once you pay this mechanic, and even if you sue, you may never see your money. While this is possible, the law requires that you follow the legal procedures when someone does harm to you. That is, you must sue and win, and thereby receive a judgment against that person. You must then take the steps necessary and allowed by law to enforce that judgment. In most states, this is the law and as much as we may not find it to our liking, these procedures must often be followed.

Finally, many clients are tempted to take the car back. After all, it is their car. If you are considering this, it is important to know the consequences of doing so. This discussion will not express an opinion on self-help type of remedies, except to say that, if used improperly, they might affect an otherwise strong legal case. Always consult with your Plan Attorney before engaging in such procedures, or you might cause substantially more problems than you already had.

What should you do if the car breaks down after being repaired? Most garages will give certain types of warranties, such as 90 day parts warranties, one year parts warranties, or 30 day labor warranties. These are all different and usually are not mandated by state law [but you may want to check with Consumer Affairs Department in your state to make sure.] Also, certain states will imply warranties, for example a warranty of fitness. Thus, if you have a flat tire fixed, and the car leaves the garage and the same tire is flat within five minutes, there may be a tire warranty. Or if there is no warranty, the state may imply a warranty claiming that the tire repairs should have allowed the tire to be able to be driven on without going flat.

If necessary, you could sue under the express warranty or the implied warranty theory and recover the money you have to pay to fix the tire a second time. If the tire went flat and caused you to have an accident, remember to discuss this with a Plan Attorney immediately, if you are a member, and especially to preserve the evidence before repairs are made, since you may have a lawsuit in formal court, or someone may be suing you for large amounts.

Also, if you are seeking damages other than those incurred to fix the flat a second time, you should consult with your Plan Attorney, if you are a member.

But before you run down to the courthouse, be sure, or at least reasonably certain that the mechanic's repairs were the actual cause of the problem. You cannot recover damages for a mechanical problem unless that mechanical problem actually causes some form of damage. Just because your car was in the shop does not mean a judge will simply believe that the mechanic did not fix a problem properly. It is your burden to produce actual proof that the repairs made by the mechanic were improper.

Points to Remember

• If the repaired car malfunctions and causes some type of accident, damage, or personal injury call your Plan Attorney immediately.
• State law may allow you to be free from payment if repairs are made which were not requested.
• If the bill is higher than the estimate, go over the bill with the mechanic.
• A mechanic may have the right, by state law, to impose a lien on your car and sometimes the right to keep and store your car at your expense if you refuse to pay.
• To avoid storage costs associated with a lien, pay the difference under protest and record that protest in writing.
• Stopping payment on a check to the mechanic may be illegal and may result in your prosecution for theft.
• Before you sue, be sure that the specific repairs are the actual cause of the problem.