COULD NOT, WOULD NOT CARE TO DUPLICATE THE PROBLEM

Our firm has long advised unlucky lemon owners, “Don’t get discouraged if the service writer or technician states the problem couldn’t be duplicated.  This doesn’t mean you are crazy; it only means they couldn’t or wouldn’t find the problem.”   

While this is very true, there still remains a burning question: Why couldn’t or wouldn’t they duplicate the problem? 

As I studied stack after thick stack of our clients’ repair orders, I couldn’t help wondering, What’s going on here?  I kept encountering, again and again, in big, bold letters, comments such as: “COULD NOT DUPLICATE CUSTOMER’S CONCERN AT THIS TIME.”  These comments became so pervasive that it became downright annoying. 

It didn’t seem plausible to me that our clients were simply dreaming up complaints about their autos – the time, expense and frustration involved in repeatedly returning one’s car to the dealership argued against this.  In short, it isn’t the type of sport that anyone with a full deck would engage in.   

Or could it be that dealership’s mechanics were simply a devious lot, or just terribly incompetent? 

I decided to do a wise thing with my questions – turn to the auto experts to shed some light.  The following is some of what I learned: 

First of all, the situation wherein the technician is not able to duplicate a customer’s concern is widespread.  Gregory J. Barnett, a forensic automotive expert from Costa Mesa, estimates that every day of the week probably half of the volume that goes into an auto shop is returned to the customer as “unable to duplicate.” 

WHY “UNABLE TO DUPLICATE”?

One possibility for a dealership’s inability to duplicate a customer’s concern is that the problem with the vehicle is intermittent (it occurs only some of the time, and you can never predict when, except that you can be safe in assuming it won’t occur when you take it in to the dealership, Murphy’s Law being what it is.)  Actually, intermittent problems with vehicles are quite common and the manufacturer will normally refuse to permit the franchise dealer to make any warranty adjustments unless one of their trained technicians personally observed the problem.   

WARRANTY DOESN’T PAY WELL 

Another possibility, Barnett explains, is that, “Many times the technician simply doesn’t want to do warranty work because it doesn’t pay very well.”  Tim Saurwein of Apperson Automotive in Tujunga agrees with this assessment.  “A lot of mechanics, “ he says, “don’t want to do the warranty because warranty doesn’t pay well….Most of the time the pay you are getting is less than it took you to repair the car.”  

Barnett points out that, for dealership technicians, there are two kinds of jobs for them to do:  warranty work and customer-pay jobs.   The vast majority of technicians prefer customer-pay jobs over warranty jobs because they always get paid right away, they are always paid at the posted rate and the time listed to complete a job is more realistic.  With warranty work, on the other hand, it is quite likely that a technician will not be compensated for all of his time, should he elect to do a complete and thorough job.  As Barnett says, “They hand you [the technicians] a manual with dictated times of what the operation should take and, generally, that’s pretty bare-bones minimum if you can do it in that time at all – usually, the technician winds up eating some of his labor, in that case.”  These warranty guidelines come from the manufacturers themselves.   

“CHERRY-PICKING”

 If given the option, the typical technician will “cherry pick” the more lucrative customer-pay jobs, the ones that put the most dollars in his pocket, and “shove the warranty work off to the last.” 

Saurwein asks the rhetorical question for a hypothetical cherry-picking brake and front-end technician, “Let’s say he’s got a warranty repair job on an ABS [anti-lock brake system] malfunction or he has a complete brake job.  Which is he going to want to do – the customer-pay brake job or the warranty ABS job?  Answer: The customer-pay job!

So then what happens if a technician is forced to do a warranty job in which he is not compensated for taking the extra time to thoroughly diagnose and correct the problem?  Per Barnett, the most likely outcome is the following: 

“They’ll write on the repair order, “Unable to duplicate at this time.”  He adds, “Technicians are fairly diligent, but if they get real busy, I guarantee that they are not going to give that car a very long test drive.  At most, they’ll take it around the block, and if it’s not doing it (manifesting the problem) at this point in time, they’ll hand the work order right back to the dispatcher and go on to something that will pay.” 

So, in many cases, the technicians just don’t take the time to try to find the warranty-covered problem.  Saurwein again agrees with Barnett.  He says that when a customer has a problem with a car that requires road-testing of the vehicle, the technician will usually make the test short and “if he’s seen the complaint before, if it’s a new car, he just thinks, “Well, that’s just the way the vehicle is designed,”  or he writes down, “No problem found” (or “NPF” in the trade vernacular).  

According to Forrest E. Folck, ABS expert from San Diego, the manufacturers themselves are aware of this problem of technicians preferring customer-pay jobs over warranty work, and have been making efforts to tighten up the area, but there is still a discrepancy.  “There is still an incentive,” Folck says, “ to do more customer-pay – it is still more lucrative.” 

Indeed, Randy Sottile of Lemon Law Consultants describes customer-pay work as “Show me the money.”  He says a mechanic will always take customer-pay work over warranty work because you get paid immediately and at a flat rate. 

ON NOT GETTING PAID FOR YOUR TIME

Saurwein explains that there is a labor time guide that is used throughout the auto repair business called the “Mitchell manual.”  He says that you could, for example, take a water pump for a certain year car and look in the Mitchell manual, or customer-pay guide, and see that it gives you 2.5 hours to replace the water pump, whereas most often in parentheses to the left of this, it will say 1.5 hours for the same job under warranty repair.  So, in this example, the technician would receive an additional hour to perform the repair under Mitchell than under warranty guidelines.  Put in other words, you can see that if the job was a warranty repair, and actually took 2.5 hours to do, the technician would not be getting paid for an hour of his labor. 

Sometimes warranty work could even be used as punishment.  Saurwein says he was one of the rare ones that didn’t mind either way whether he was given warranty or customer-pay jobs when he was a dealership technician.  But, he says, “Let’s say if you got a mechanic who is a whiner and he’s constantly whining about this and that, they may give him a bunch of warranty work to do.”  I asked Saurwein for an example of an unattractive warranty job that a mechanic would normally shun.  He said most mechanics don’t want to deal with a car’s interior or any of the trim accessories.  So most mechanics, for example,  would try to avoid problems with a wind leak, a squeak, a rattle or an intermittent wiring problem.   

On the other hand, technicians tend to love doing basic scheduled services (e.g., 15-, 20-, 30- or 60,000-mile services) because “it’s a good-paying customer-pay job.”  Said Saurwein, “That’s what we used to refer to as the gravy end of the job….” 

MISUSING THE LEMON LAW 

To compound the problem of the unattractiveness of warranty work to the dealership technician, frequently dealer and manufacturer representatives are given training in the Lemon Law, and they will use it to their advantage, and against their customers.  An example of this would be, a customer complains for the fourth time in a year of a transmission malfunction.  The dealer or manufacturer rep may then say, “But it wasn’t the same transmission part this time, so therefore it does not qualify under the Lemon Law.”   Says Barnett, “They will say that it was this part one time, a different part the next time, even though it may have been the same part both times.  Absolutely, they do things like that in avoidance of lemon law cases.”   

BAD DESIGNS

Yet another problem, Barnett points out, is that bad designs do come off the production line.  A particular model and year of car could have a problem with hard downshifiting, for example, when you are decelerating from 45-50 mph and then you give the car a little bit of acceleration, resulting in the transmission “klunking” or jerking.  This could be just a design flaw that perhaps would be  fixed in later models, but you could keep taking the car with that design flaw back to the dealer forever and they would keep telling you it was operating according to factory specs, i.e., operating normally.  The whole point is, however, that it is operating normally as “a lemon.” 

Many times design flaws are addressed through “service bulletins” (advisories from the manufacturer to the technician on how to repair the problem) or a “service campaign” (in which, if the customer comes in with his vehicle, the dealer will put the upgrade on at no charge) or a “recall” (that is mandated by the government and entails every customer being notified of the problem via a mailing).  Barnett says that to get involved in any kind of a recall effort or to investigate a case, the National Highway Traffic Safety Administration (NHTSA) requires a figure of customer complaints equaling one to two percent of the sold vehicles of that particular model.   

SUMMING UP

So if you happen to own a poorly designed car that has an intermittent problem, especially  one related to the interior of the vehicle, and the service technicians at your dealership are like most others (not wanting to touch difficult, non-lucrative warranty jobs), then don’t be surprised if you see on your repair order, “COULD NOT DUPLICATE CUSTOMER’S CONCERN” or the even more succinct, “NO PROBLEM FOUND”.  Furthermore, don’t be shocked when the lemon-law trained manufacturer’s and dealer’s rep’s deny the problem exists.   It doesn’t mean you’re crazy.  It’s just how the system operates at this time.   

However, you can still fight and win in a lemon law case, even with the above strikes against you.  The first step to take, and one we always insist our clients take, is to have your vehicle inspected by a highly skilled, qualified and articulate mechanic.  Why do I say articulate?  Because you may need him later to testify for you in deposition or at trial.  You can bet the other side is going to have their own expert tell a jury the problem is all in your head.  You want and need to have an excellent, persuasive expert in your corner to inform the jury that, on the contrary, the problem resides not in your head nor in the stars, but in the car itself, which by the way just happens to be a lemon.

### 

About Us: Robert F. Brennan, Esq. is a principal with Brennan, Wiener & Associates, an AV-rated law firm in La Crescenta, Ca.  His firm specializes in consumer protection litigation, including lemon law, car dealer fraud, wrongful credit damage, identity theft, abusive debt collection practices and consumer protection class actions.  He can be reached through is websites as follows:

www.brennanlaw.com
www.socallemonlaw.com
www.socalcreditdamage.com