Serive Issue with Car and Infiniti of Palm Beach....
It seems that you need to have the car serviced for the TSB for the fuel level flapper. It is a common and well known problem that definitely should not be affected by the Vortech being on there.
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Originally Posted by r10apple
Yeah, it's a hassle getting the attorney, meeting with them, paying out of pocket, etc., but I believe that recovery guarantess payment of the attorney fees (on top of your damages) when the complaint is pled referencing a violation of the act itself. It's the dealer's burden to prove the part caused the damage, not yours to prove it didn't. I'd think there are plenty of attorneys who would take that case...
in summary judgment, the burden of proof is on the moving party, i think. in bringing action against the dealer, the initial burden of proof is on that of the plaintiff alleging damages. if plaintiff loses SJ, then the burden remains on the plaintiff. at least thats what i learned lol. anyone wanna explain this one to me.
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From: Jupiter, FL
Ok...jeez....
I havent done much research into it but did have 1 case that involved this (albeit like 3 years ago)
What I know about the ACT:
First, you need to check the waranty being breached as it may require alternate dispute resolution (arbitration, mediation, etc). I havent read the Inifniti warranty so I do not know.
Asumming that it doesn't, this would be brought in state court as this case doesnt meet the federal case threashold but the Federal Magnuson-Moss Warranty Act ("ACT") allows for filing in State court.
The initial burden on this breach of warranty claim always lies with the plaintiff. One must allege that a defect exists, that they complied with the written or implied warranty (written in this case), the defendant had the reasonable opportunity to correct such defect and they refused and, of course, the plaintiff is damaged.
I think that once you allege the elements, the defendant must allege his affirmative defenses which will include the aftermarket issue.
I think this is a shifting burden type case. I believe the burden of proof starts with the plaintiff to allege the above and then it shifts to the defendant to show why they did not uphold the valid, express warranty. Another words, they have to prove, by a perponderance of the evidence, that the aftermarket part directly affected the issue being asked to be covered under warranty.
Since there are triable issues of facts and not simply a matter of law, you will not pass summary judgement and end up having expert style testimony in front of a judge or jury.
I havent done much research into it but did have 1 case that involved this (albeit like 3 years ago)
What I know about the ACT:
First, you need to check the waranty being breached as it may require alternate dispute resolution (arbitration, mediation, etc). I havent read the Inifniti warranty so I do not know.
Asumming that it doesn't, this would be brought in state court as this case doesnt meet the federal case threashold but the Federal Magnuson-Moss Warranty Act ("ACT") allows for filing in State court.
The initial burden on this breach of warranty claim always lies with the plaintiff. One must allege that a defect exists, that they complied with the written or implied warranty (written in this case), the defendant had the reasonable opportunity to correct such defect and they refused and, of course, the plaintiff is damaged.
I think that once you allege the elements, the defendant must allege his affirmative defenses which will include the aftermarket issue.
I think this is a shifting burden type case. I believe the burden of proof starts with the plaintiff to allege the above and then it shifts to the defendant to show why they did not uphold the valid, express warranty. Another words, they have to prove, by a perponderance of the evidence, that the aftermarket part directly affected the issue being asked to be covered under warranty.
Since there are triable issues of facts and not simply a matter of law, you will not pass summary judgement and end up having expert style testimony in front of a judge or jury.
Last edited by g8tor20; Aug 29, 2007 at 01:56 PM.
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Originally Posted by g8tor20
Ok...jeez....
Since there are triable issues of facts and not simply a matter of law, you will not pass summary judgement and end up having expert style testimony in front of a judge or jury.
Since there are triable issues of facts and not simply a matter of law, you will not pass summary judgement and end up having expert style testimony in front of a judge or jury.
AND THEREIN LIES THE RUB :-(
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From: Jupiter, FL
Originally Posted by JLT
AND THEREIN LIES THE RUB :-(
The ACT does allows for recovery of all fees and costs to, i believe, the prevailing party. So, you better be damn sure you can win....
But again.....the overall problem is the hassel