Lemon Law Complaint - West Virginia

IN THE CIRCUIT COURT OF [________________________________] COUNTY, WEST VIRGINIA

Civil Action No. [________________________________]

COMPLAINT UNDER THE WEST VIRGINIA MOTOR VEHICLE WARRANTIES ACT

Plaintiff alleges as follows:

1. PARTIES

1. Plaintiff [________________________________] resides in [________________________________] County, West Virginia.

2. Plaintiff is a consumer under W. Va. Code § 46A-6A-2(1) because Plaintiff is the [purchaser other than for resale of a new motor vehicle used primarily for personal, family, or household purposes / qualifying transferee during the express-warranty term / person entitled to enforce the warranty / qualifying purchaser or transferee of a covered farm vehicle].

3. Defendant [________________________________] manufactures, assembles, or distributes at least ten new motor vehicles to dealers under normal annual business conditions and is a manufacturer under § 46A-6A-2(2).

4. The cause of action under § 46A-6A-4 is available only against the manufacturer. Plaintiff does not assert that the Act creates a claim against an authorized dealer. See §§ 46A-6A-3(c), 46A-6A-4(e).

2. JURISDICTION, VENUE, AND TIMELINESS

5. W. Va. Code § 46A-6A-4(a) authorizes this consumer action against Defendant in a circuit court of a county having venue.

6. Counsel has confirmed that venue is proper in this county under current West Virginia law.

7. Defendant's express-warranty term expired on [__/__/____]. This action was commenced within one year after that expiration, subject to any tolling under § 46A-6A-8(c). See § 46A-6A-4(d).

8. Select and complete the applicable third-party-process allegation:

• ☐ A qualified third-party dispute resolution process existed, Plaintiff received timely written notification describing its operation and effect, and Plaintiff first resorted to it on [__/__/____]. The process concluded or required performance by [__/__/____], and Plaintiff [was dissatisfied / Defendant failed promptly to fulfill the decision].
• ☐ No qualified third-party process existed.
• ☐ Plaintiff did not receive timely written notification of an available qualified process.
• ☐ Other basis satisfying W. Va. Code § 46A-6A-8: [________________________________].

3. VEHICLE, TRANSACTION, AND WARRANTY

9. The vehicle and transaction are:

10. The vehicle is covered under W. Va. Code § 46A-6A-2(4) because it is:

• ☐ A passenger automobile purchased in West Virginia or registered and titled in West Virginia;
• ☐ A pickup truck or van registered as a Class A motor vehicle;
• ☐ The self-propelled chassis of a motor home registered as a Class A or Class B motor vehicle; or
• ☐ A self-propelled vehicle of at least 20 horsepower designed primarily for and used in farming.

11. Defendant issued a written express warranty covering [________________________________] through [date / mileage].

4. REPORT, REPAIR HISTORY, AND NONCONFORMITY

12. On [__/__/____], during the longer of the express-warranty term or one year after original delivery, Plaintiff reported the following warranty nonconformity to Defendant, its agent, or its authorized dealer: [________________________________]. See W. Va. Code § 46A-6A-3(a).

13. The condition substantially impairs the vehicle's [use / market value] because [________________________________]. If the safety presumption is alleged, the condition is likely to cause death or serious bodily injury if the vehicle is driven because [________________________________].

14. The repair history is:

15. Complete every applicable allegation under W. Va. Code § 46A-6A-5:

• ☐ The same nonconformity was subject to repair three or more times within the earlier of the express-warranty term or one year after original delivery and continues to exist.
• ☐ The vehicle was out of service for at least 30 cumulative calendar days within that earlier period.
• ☐ A condition likely to cause death or serious bodily injury was subject to repair at least once within that earlier period and continues to exist.
• ☐ Even if a presumption is disputed, the actual history establishes a reasonable number of attempts: [________________________________].

16. Any extension for a period during which repair services were unavailable because of war, invasion, strike, fire, flood, or other natural disaster is [not applicable / calculated as follows: ________________________________]. See § 46A-6A-5(d).

5. WRITTEN NOTICE AND OPPORTUNITY TO CURE

17. Before relying on the statutory presumption, Plaintiff gave Defendant prior written notification of the alleged defect on [__/__/____]. Defendant received it on [__/__/____]. A copy and proof of delivery are attached as Exhibit [____].

18. Defendant received at least one opportunity to cure after written notification. The vehicle was presented on [__/__/____] to [________________________________], and the result was [________________________________]. See W. Va. Code § 46A-6A-5(c).

6. CLAIM UNDER W. VA. CODE § 46A-6A-4

19. Plaintiff incorporates the preceding allegations.

20. Defendant did not replace the vehicle with a conforming comparable new motor vehicle under § 46A-6A-3(b), and the nonconformity substantially impairs the vehicle's use or market value [and / or] continues after a reasonable number of attempts.

21. Plaintiff therefore has a cause of action under § 46A-6A-4(a).

22. The nonconformity is not the result of abuse, neglect, or unauthorized modification or alteration by anyone other than Defendant, its agent, or its authorized dealer.

7. REQUEST FOR RELIEF

Under W. Va. Code § 46A-6A-4(b), Plaintiff requests all relief supported by the evidence, including:

1. Revocation of acceptance and refund of the purchase price, including sales tax, license and registration fees, and other reasonable purchase expenses, or alternatively damages for diminished value;
2. The cost of repairs reasonably required to conform the vehicle to the express warranty;
3. Damages for loss of use, annoyance, or inconvenience, including reasonable replacement-transportation expenses;
4. Reasonable attorney fees;
5. Prejudgment and post-judgment interest only to the extent authorized by applicable law; and
6. Any other relief the Court determines is available and proper.

The West Virginia statute does not prescribe a fixed mileage-offset formula for a court refund. Plaintiff does not plead an invented offset.

8. SIGNATURE

Respectfully submitted,

[LAW FIRM NAME]

By: ________________________________

[Attorney Name], West Virginia State Bar No. [__________]

[Address]

[Telephone]

[Email]

Counsel for Plaintiff

EXHIBIT CHECKLIST

• ☐ Purchase or covered-transfer documents
• ☐ Express warranty
• ☐ Repair orders and invoices
• ☐ Written notice and proof of delivery
• ☐ Final cure-opportunity records
• ☐ Third-party dispute procedure records, if applicable
• ☐ Out-of-service-day calculation
• ☐ Purchase-expense, repair, transportation, and loss records

SOURCES AND REFERENCES

• West Virginia Legislature — § 46A-6A-2 definitions
• West Virginia Legislature — § 46A-6A-3 repair and replacement duty
• West Virginia Legislature — § 46A-6A-4 civil action and remedies
• West Virginia Legislature — § 46A-6A-5 presumptions, notice, cure, and extensions
• West Virginia Legislature — § 46A-6A-8 third-party process and tolling