Lemon Law Complaint

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

[PLAINTIFF FULL LEGAL NAME], )
An individual resident of [County] County, )
West Virginia, )
)
Plaintiff, )
)
v. ) Civil Action No.: ___________
)
[DEFENDANT MANUFACTURER LEGAL NAME], )
A [State of Incorporation] corporation, )
doing business in West Virginia, )
)
Defendant. )
)

COMPLAINT FOR VIOLATION OF WEST VIRGINIA MOTOR VEHICLE
WARRANTY ENFORCEMENT ACT (“LEMON LAW”), BREACH OF EXPRESS
WARRANTY, AND RELATED INJUNCTIVE RELIEF

Table of Contents

1. Parties .......................................................................................................... ¶ 1
2. Jurisdiction and Venue ..................................................................... ¶ 4
3. Definitions ........................................................................................... ¶ 6
4. Factual Allegations ............................................................................ ¶ 11

5. Causes of Action ................................................................................ ¶ 22
   Count I – West Virginia Lemon Law ................................................. ¶ 23
   Count II – Breach of Express Warranty ........................................... ¶ 30
   Count III – Magnuson-Moss Warranty Act ..................................... ¶ 34

6. Prayer for Relief ................................................................................ ¶ 40

7. Jury Demand ..................................................................................... ¶ 48
8. Verification ........................................................................................ ¶ 50

1. PARTIES

1. Plaintiff [PLAINTIFF FULL LEGAL NAME] (“Plaintiff”) is an individual of legal majority residing at [Plaintiff Address], [County] County, West Virginia.

2. Defendant [DEFENDANT MANUFACTURER LEGAL NAME] (“Manufacturer” or “Defendant”) is a [State of Incorporation] corporation with its principal place of business at [Principal Place of Business] and is authorized to conduct, and does conduct, substantial business within the State of West Virginia, including the sale and servicing of motor vehicles.

3. At all relevant times, Defendant was engaged in the business of manufacturing, warranting, advertising, and selling new motor vehicles, including the [YEAR MAKE MODEL] purchased by Plaintiff (the “Subject Vehicle”).

2. JURISDICTION AND VENUE

4. This Court has subject-matter jurisdiction under W. Va. Code §46A-6A-8 (private right of action under the Motor Vehicle Warranty Enforcement Act) and W. Va. Code §51-2-2 (general jurisdiction of circuit courts).

5. Venue is proper in this Court pursuant to W. Va. Code §56-1-1(a) because (a) the Plaintiff resides in this county; (b) the Subject Vehicle was purchased and/or serviced in this county; and (c) Defendant regularly conducts business in this county.

3. DEFINITIONS

For ease of reference, the following capitalized terms shall have the meanings set forth below:

6. “Act” means the West Virginia Motor Vehicle Warranty Enforcement Act, W. Va. Code §46A-6A-1 et seq.

7. “Authorized Repair Facility” means any dealership or repair center authorized by Defendant to perform warranty repairs on the Subject Vehicle.

8. “Nonconformity” or “Nonconformities” means a defect, condition, or combination of conditions that substantially impairs the use, market value, or safety of the Subject Vehicle and which is covered by Defendant’s express warranty.

9. “Reasonable Number of Attempts” has the meaning set forth in W. Va. Code §46A-6A-3(a).

10. “Subject Vehicle” means the [YEAR] [MAKE] [MODEL], Vehicle Identification Number (“VIN”) [VIN], purchased by Plaintiff on [Purchase Date].

4. FACTUAL ALLEGATIONS

Purchase of the Subject Vehicle

11. On or about [Purchase Date], Plaintiff purchased the Subject Vehicle from [Selling Dealer Name], an authorized dealer of Defendant, for the purchase price of $[Purchase Price].

12. At the time of purchase, the Subject Vehicle was accompanied by Defendant’s written express warranty, including a [bumper-to-bumper and/or powertrain] warranty of [duration/mileage].

Onset of Nonconformities

13. Within [Number] days and before the odometer reached [Mileage] miles, the Subject Vehicle manifested serious Nonconformities, including but not limited to:
    a. [Nonconformity 1];
    b. [Nonconformity 2];
    c. [Nonconformity 3].

Repair Attempts and Out-of-Service Days

14. Plaintiff presented the Subject Vehicle to an Authorized Repair Facility on at least [Number] separate occasions for diagnosis and repair of the same or substantially similar Nonconformities.

15. Alternatively, the Subject Vehicle was out-of-service for repair for an aggregate of at least [30] calendar days within the first [12 months/12,000 miles], whichever occurred first.

Compliance with Informal Dispute Settlement Procedure

16. Defendant maintains an informal dispute settlement procedure (“IDSP”) that is not certified in West Virginia under the Act.
    

17. Because Defendant’s IDSP is not certified, Plaintiff was not required to, and did not, submit to arbitration prior to filing this action.

Notice to Manufacturer

18. Plaintiff provided Defendant with written notice of the Nonconformities and a final opportunity to cure on [Date], via certified mail, return receipt requested, in conformity with W. Va. Code §46A-6A-3(b).

19. Defendant failed and refused to repurchase or replace the Subject Vehicle within the statutory timeframe.

20. All conditions precedent to the maintenance of this action have occurred, been satisfied, or have been waived.

21. Plaintiff has retained counsel and is obligated to pay reasonable attorneys’ fees and costs, for which Defendant is liable pursuant to W. Va. Code §46A-6A-8(b).

5. CAUSES OF ACTION

COUNT I – Violation of West Virginia Motor Vehicle Warranty Enforcement Act

(Against Defendant)

22. Plaintiff realleges and incorporates by reference ¶¶ 1-21 as though fully set forth herein.

23. The Subject Vehicle is a “new motor vehicle” within the meaning of W. Va. Code §46A-6A-2(e).

24. Defendant’s express warranty constitutes a “manufacturer’s express warranty” under W. Va. Code §46A-6A-2(c).

25. The Subject Vehicle has a Nonconformity that Defendant has been unable to repair after a Reasonable Number of Attempts, or alternatively, has been out-of-service for more than 30 cumulative days, thereby triggering Defendant’s statutory duty to repurchase or replace the vehicle under W. Va. Code §46A-6A-4(a).

26. Defendant’s refusal to repurchase or replace the Subject Vehicle violates W. Va. Code §46A-6A-4 and §46A-6A-3.

27. Plaintiff has sustained damages proximately caused by Defendant’s statutory violation, including but not limited to the purchase price, finance charges, registration fees, incidental and consequential damages, loss of use, and attorneys’ fees and costs.

COUNT II – Breach of Express Warranty

(Against Defendant)

28. Plaintiff realleges and incorporates by reference ¶¶ 1-27.

29. Defendant’s failure to repair the Nonconformities within a reasonable time and manner constitutes a breach of express warranty under W. Va. Code §46-2-313 and §46-2-714.

30. As a direct result, Plaintiff has incurred the damages set forth in ¶27.

COUNT III – Violation of Magnuson-Moss Warranty Act, 15 U.S.C. §2301 et seq.

(Against Defendant)

31. Plaintiff realleges and incorporates by reference ¶¶ 1-30.

32. Defendant’s breach of Defendant’s written warranty constitutes a violation of 15 U.S.C. §2310(d), entitling Plaintiff to damages, costs, and reasonable attorneys’ fees.

6. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests that the Court enter judgment in Plaintiff’s favor and against Defendant, and award the following relief:

a. An order directing Defendant to, at Plaintiff’s election, either:
i. Replace the Subject Vehicle with a new, comparable vehicle; or
ii. Repurchase the Subject Vehicle and refund the full purchase price less the statutory reasonable use allowance;

b. Incidental and consequential damages, including but not limited to towing, rental car, and diagnostic expenses;

c. Pre-judgment and post-judgment interest as allowed by law;

d. Reasonable attorneys’ fees and costs pursuant to W. Va. Code §46A-6A-8(b) and 15 U.S.C. §2310(d)(2);

e. Declaratory relief that Defendant’s conduct violated the Act and Magnuson-Moss;

f. Such other and further legal or equitable relief, including injunctive relief, as the Court deems just and proper.

7. JURY DEMAND

33. Pursuant to Article III, § 13 of the West Virginia Constitution and Rule 38 of the West Virginia Rules of Civil Procedure, Plaintiff demands a trial by jury on all issues so triable.

8. VERIFICATION

34. I, [PLAINTIFF FULL LEGAL NAME], verify that I have read the foregoing Complaint and that the facts stated therein are true and correct to the best of my knowledge, information, and belief.

Date: _____________ ___________________________________
[PLAINTIFF FULL LEGAL NAME]

Respectfully submitted,

[LAW FIRM NAME]
[Address]
[City, State ZIP]
[Phone]
[Bar ID No. ____]

By: __________________________________
[ATTORNEY NAME], Esquire
Counsel for Plaintiff

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