218.0171 AnnotationThis section is a stand alone statute that is not dependent upon or qualified by the Uniform Commercial Code. An obligation of good faith by all parties is rooted in the statute. There is no basis to argue that a party who acts in compliance with the statute acts in bad faith. Herzberg v. Ford Motor Co., 2001 WI App 65, 242 Wis. 2d 316, 626 N.W.2d 67, 00-1284. 218.0171 AnnotationA person who purchases a vehicle at the conclusion of a lease term is no longer a consumer within the meaning of sub. (1) (b) 4. and is not entitled to any relief under the Lemon Law. Varda v. General Motors Corp., 2001 WI App 89, 242 Wis. 2d 756, 626 N.W.2d 346, 00-1720. 218.0171 AnnotationA manufacturer did not fulfill its obligation to provide a comparable new motor vehicle under sub. (2) (b) by offering to replace a consumer’s nonconforming tow truck with a new cab and chassis but without a new tow unit, although the tow unit was not manufactured by the manufacturer. Kiss v. General Motors Corp., 2001 WI App 122, 246 Wis. 2d 364, 630 N.W.2d 742, 00-0626. 218.0171 AnnotationEnforcement of an informal settlement decision under sub. (3) is not limited to remedies under ch. 788, applicable to arbitration. Acceptance of the decision by the consumer does not prevent the consumer from pursuing an action under sub. (7) to enforce the decision. Kiss v. General Motors Corp., 2001 WI App 122, 246 Wis. 2d 364, 630 N.W.2d 742, 00-0626. 218.0171 AnnotationIn order to receive a refund or replacement vehicle under sub. (2) (b), the consumer must offer to transfer title back to the manufacturer and, upon receipt of the refund or replacement, deliver the vehicle and its title to the manufacturer. A vehicle owner who transferred the vehicle back to the dealer eight months prior to seeking relief could not fulfill these requirements and was no longer a consumer who could assert a claim under this section. Smyser v. Western Star Trucks Corp., 2001 WI App 180, 247 Wis. 2d 281, 634 N.W.2d 134, 00-2482. 218.0171 AnnotationDelivery of a refund check to a dealer and a fax to the consumer’s attorney is not delivery of the refund to the consumer for purposes of determining whether the refund is timely made under sub. (2) (c). Estate of Riley v. Ford Motor Co., 2001 WI App 234, 248 Wis. 2d 193, 635 N.W.2d 635, 00-2977. 218.0171 AnnotationSub. (2) (b) 3. does not apply when a Lemon Law action is filed. Instead, the sub. (7) pecuniary loss provisions apply. The current value of a vehicle lease is not the proper measure of damages under sub. (7). Estate of Riley v. Ford Motor Co., 2001 WI App 234, 248 Wis. 2d 193, 635 N.W.2d 635, 00-2977. 218.0171 AnnotationFor purposes of triggering the 30-day time limit under sub. (2) (c), the consumer must either demand that the manufacturer provide a new vehicle or demand that the manufacturer refund the purchase price. The choice cannot be left to the manufacturer, and the manufacturer cannot be offered a third choice. Berends v. Mack Truck, Inc., 2002 WI App 69, 252 Wis. 2d 371, 643 N.W.2d 158, 01-0911. 218.0171 AnnotationThis section makes the vehicle manufacturer liable for nonconformities to the engine even though the engine is not covered in the manufacturer’s express warranty. Schonscheck v. Paccar, Inc., 2003 WI App 79, 261 Wis. 2d 769, 661 N.W.2d 476, 02-1413. 218.0171 AnnotationA consumer who demands a replacement vehicle under this section impliedly offers to transfer title to the old vehicle as required under sub. (2) (c). Garcia v. Mazda Motor of America, Inc., 2004 WI 93, 273 Wis. 2d 612, 682 N.W.2d 365, 02-2260. 218.0171 AnnotationA consumer has a duty to act in good faith in pursuing a Lemon Law claim. Under sub. (2) (b) 2. b., the phrase “refund to any holder of a perfected security interest as [its] interest may appear” requires the payor transferring the correct sum to the secured lender in a separate check, not giving a lump-sum check to the consumer and leaving the consumer to sort it out with the lender. If a consumer intentionally thwarted the manufacturer’s attempt to make a refund by failing to provide necessary information about the consumer’s auto loan, the consumer is not entitled to the Lemon Law’s statutory remedies. Marquez v. Mercedes-Benz USA, LLC, 2008 WI App 70, 312 Wis. 2d 210, 751 N.W.2d 859, 07-0681. 218.0171 AnnotationWhen the purchaser objected to signing documents as a condition to receiving a replacement vehicle and the manufacturer agreed to waive the signing requirement, it did not support a finding that the purchaser was required to sign prohibited documents in order to obtain the replacement vehicle, and no violation of this section occurred. BCR Trucking, LLC v. PACCAR, Inc., 2009 WI App 36, 316 Wis. 2d 465, 765 N.W.2d 828, 08-1196. 218.0171 AnnotationWhen a consumer who is leasing a motor vehicle brings an action against the manufacturer of the vehicle under sub. (7) then exercises an option to purchase the vehicle under the terms of the lease, the consumer is not entitled to damages for the price of the voluntary purchase because the purchase is not caused by any violation of this section by the manufacturer. Furthermore, a consumer’s refund under sub. (2) (b) 2. b. or 3. a. is subject to a reasonable allowance for use. Because sub. (7) is read in conjunction with the rest of this section, the amount of pecuniary loss under sub. (7) must incorporate a reasonable allowance for use before the pecuniary loss is doubled. Tammi v. Porsche Cars North America, Inc., 2009 WI 83, 320 Wis. 2d 45, 768 N.W.2d 783, 08-1913. 218.0171 AnnotationA dealer is not a “manufacturer” under sub. (1) (c) that is liable for the failure of the component parts it installed. Despite the assertion that a dealer essentially assembled a motorcycle when it installed accessories, the Lemon Law provision specifically excludes a “motor vehicle dealer” from the definition of “manufacturer.” Goudy v. Yamaha Motor Corp., USA, 2010 WI App 55, 324 Wis. 2d 441, 782 N.W.2d 114, 09-0617. 218.0171 AnnotationThe plain language of sub. (7) supports the conclusion that a plaintiff may maintain an action for equitable relief under sub. (7). In order to obtain relief under sub. (7), however, the plaintiff must prove a violation of some part of this section. Kilian v. Mercedes-Benz USA, LLC, 2011 WI 65, 335 Wis. 2d 566, 799 N.W.2d 815, 09-0538. 218.0171 AnnotationUnder sub. (2) (cm) 3., a lender who continues to enforce a lease after the consumer returns the vehicle and receives a refund from the manufacturer may be held to violate the plain language of this section prohibiting any person from doing so. Kilian v. Mercedes-Benz USA, LLC, 2011 WI 65, 335 Wis. 2d 566, 799 N.W.2d 815, 09-0538. 218.0171 AnnotationA prevailing party in an equitable action under sub. (7) is entitled to costs, disbursements, and reasonable attorney fees, but in this case the prevailing party was not entitled to an award for pecuniary loss. The legislature did not intend that consumers who have already received a proper refund should also recover twice the amount they paid under the lease as pecuniary loss. Such a result would provide a windfall without advancing a central purpose of sub. (7)—discouraging manufacturers from withholding legitimate refunds. Kilian v. Mercedes-Benz USA, LLC, 2011 WI 65, 335 Wis. 2d 566, 799 N.W.2d 815, 09-0538. 218.0171 AnnotationA manufacturer may avoid Lemon Law penalties for failing to provide a refund within the 30-day period under sub. (2) (c) if it proves that the consumer intentionally prevented the manufacturer from providing a refund within the 30-day statutory period. The manufacturer must meet the middle burden of proof of “clear and convincing” evidence in proving its affirmative defense that a consumer intentionally prevented it from providing a refund within the 30-day statutory period under the Lemon Law. Marquez v. Mercedes-Benz USA, LLC, 2012 WI 57, 341 Wis. 2d 119, 815 N.W.2d 314, 10-0826. 218.0171 AnnotationThis section requires that a plaintiff prove two elements in order to recover: 1) that the car is a lemon; and 2) that the manufacturer failed to provide a comparable replacement within the provided timeframe. It was not inconsistent for the defendant to defend both elements of the plaintiff’s claim. Because the defendant’s defenses were not inconsistent, the defendant was not required to either assert 1) that the car was not a lemon, or 2) that the car was a lemon but that it provided a comparable replacement under the election of remedies doctrine. Porter v. Ford Motor Co., 2015 WI App 39, 362 Wis. 2d 505, 865 N.W.2d 207, 14-0975. 218.0171 AnnotationSub. (2) (a) does not say that the vehicle is available for repair only if it is actually taken to the manufacturer or an authorized dealer. The Lemon Law protects consumers who go to a repair facility authorized by the manufacturer whether the facility is a manufacturer’s authorized motor vehicle dealer or not. Burzlaff v. Thoroughbred Motorsports, Inc., 758 F.3d 841 (2014). 218.0171 AnnotationThe Lemon Law does not state that a manufacturer satisfies its refund obligations by tendering a check to the consumer for the consumer’s part of the refund along with an assurance that it will pay off the lienholder directly. Rather, sub. (2) (b) 2. b. requires that the manufacturer must tender a check to the consumer and actually pay off the lien. In this case, the purchaser did return the vehicle, but the manufacturer did not send out a refund and pay off the lien, but insisted that the purchaser either “accept” the refund, which the purchaser was not required to do, or come and retrieve the vehicle. James Michael Leasing Co. v. PACCAR, Inc., 772 F.3d 2d 815 (2014). 218.0171 Annotation“Days” under sub. (1) (h) includes weekends and holidays. Kletzien v. Ford Motor Co., 668 F. Supp. 1225 (1987). 218.0171 AnnotationWhen, at the plaintiffs’ home in Wisconsin, a Minnesota motor vehicle dealer accepted a down payment and entered into a binding purchase contract that obligated the plaintiffs to take delivery of a new vehicle and to pay the remainder of the purchase price at the time of delivery, the purchase occurred in Wisconsin. Because the plaintiffs purchased the vehicle in Wisconsin, this section applied. Begalke v. Sterling Truck Corp., 437 F. Supp. 2d 847 (2006). 218.0171 AnnotationThe argument that the word “transfer” in sub. (1) (d) refers to transfer of title to a motor vehicle, as opposed to transfer of the vehicle itself, is unconvincing for the simple reason that it contains no mention of the word “title.” Consideration of ch. 342 does not change the result. At least as between the parties themselves, a transfer of ownership takes place before a new title to a vehicle is issued. “Accept transfer of,” as used in sub. (1) (d), refers to transfer of possession of the vehicle. Since it is undisputed that the plaintiffs traveled to the dealership in Illinois to take possession of the vehicle, they did not accept transfer of the vehicle in Wisconsin. Lamont v. Winnebago Industries, Inc., 569 F. Supp. 2d 806 (2008). 218.0171 AnnotationRemedies for motor vehicle purchasers. Nicks. WBB Mar. 1985.