CONSUMERS RULE - Thanks to the Magnuson-Moss Warranty Act, you, Mr. Happy Consumer, have more rights than you probably realize Sport Rider Magazine, April 2004, pp. 88-92 by marc cook illustration by douglas fraser YOUR NEARLY NEW SUPERSPORT HAS BEEN SOUNDING FUNNY lately. A distinct rattle in the morning is followed by a noticeable reduction in power. You're obviously concerned, and puzzled. After all, you've spent a lot of money and time taking the best care of your bike. It's got all the trickiest add-ons: the coolest pipe, a premier fuel-injection setup, an ignition advancer by some guy who used to work for the factory and high-end suspension upgrades. The whole shebang, in other words. This is your baby. Finally, you decide the noise isn't getting rights varied tremendously from state to any better and, as your bike is still under the standard factory warranty, take it to the dealer for a look-see. The service manager listens to your concerns, gives the bike a cursory inspection (naturally the sound won't recur with him there) and proclaims, "It's nothing." But you know different and press the point. Finally, the service manager turns to you and says, "Well, anyway, you've modified the bike and that voids your warranty. We can open it up and see what's wrong, but we're going to charge you for that. And if we find something wrong, it won't be covered under warranty." Your inner devil wants you to drag this cretin over the counter and ventilate his skull, but your internal checks and balances give you the strength to merely nod, pick up your stuff and leave. Welcome to the warranty dance. Although this is a fictional account, many like this transpire all over the country, day in and day out. And while we're certainly generalizing the dealership experience—some are much better and will jump into the job of troubleshooting your mystery noise without any pre-inspection blame storming—we've heard enough horror stories to suggest that just such an encounter is far from an anomaly. But here's the thing: That service manager is wrong. Dead wrong. (At least at this juncture. Until he's found what's wrong and can mount a case that it is your fault, it's not up to him to deny the claim or resist efforts to get to the bottom of it. More later.) As a consumer you have a powerful ally in the Magnuson-Moss Warranty Act, a piece of groundbreaking law enacted by Congress in 1975 with the aim of giving consumers better information about written warranties and providing a system under which they could get satisfaction for warranty claims in a reasonable amount of time. Moreover, because this is a federal law, the stakes are considerably higher for manufacturers or distributors who do not abide by it; previously, this was the province of the states—and consumer state. Magnuson-Moss consolidated the rules and gave them bigger teeth. This is just the tool you need to be treated fairly by the dealer regarding your in-warranty motorcycle. The Act applies only to written warranties (known as express warranties because they're stated, not because stuff happens fast) on consumer items. But even if an express warranty is not issued, state laws step in to provide another backstop in the form of "implied" warranties that cover two basic areas known as merchantability and fitness—basically, does the product do what it is supposed to do (compared to other products like it), and does it do what the manufacturer or the sales organization claims it does (a 125cc scooter obviously can't have a claimed top speed of 150 mph). Finally—and relax, we're almost through the hard part— there's the issue of full or limited warranty. Full basically covers everything for every owner until the end of time; naturally, motorcycle warranties are limited, set for a specific time period—usually one to three years and a set number of miles. (Massive props to the MLMLaw Web site [www.mrmlaw.com] for a great layman's explanation of the Act.) Great, fine. But what does this mean for our motorcycle friend? First of all, the Act places a number of conditions on the language of the warranty itself, in that it must be clear and unambiguous. What's more, it must specify in very simple terms the conditions under which the warranty may not be valid. Cool. Sounds like the government has put all the power into the consumers' hands and basically put the manufacturers on the hook for any problems that occur within the warranty period. Well, not really. There are varying requirements the manufacturer can hold you to, and these generally include adherence to the prescribed maintenance schedule. Moreover, there is usually some language in the warranty that voids coverage if the bike is used for racing—though this is not generally construed to include track time for training purposes—as well as loopholes covering abuse and neglect. For the warranty to be nullified with the addition of aftermarket parts, it must be spelled out clearly and explicitly in the warranty's text. What's more, the Federal Trade Commission, the agency charged with oversight of this law, takes a very dim view of blanket denials, such as a manufacturer saying your warranty is void if you make any modifications to the bike at all. Along the same lines, Magnuson-Moss prohibits something called tie-in coverage—this means that a company cannot make warranty coverage contingent on, say, dealer service only or the use of a specific oil brand. If you're told that if you don't take your bike in for the initial (usually 600-mile) service your warranty will be void, you've just heard a load of B.S. Still, someone is expected to perform the tasks set for the initial service, but it can be you or your mechanic buddy—just be sure you guys know what you're doing. The manufacturer usually can't be held responsible for negligence on your part. In addition—and this is an important aspect of the law—to flatly deny warranty coverage the manufacturer must prove that you have done something to cause the problem. It's not up to you to prove that you have not. It's two different things to have the service writer say you're at fault and to have a large manufacturing concern go on record that you did the deed. Unless there are significant cases already on the books and the manufacturer can produce a genuine engineering study indicating that, say, your combination of pipe and chip will cause engine damage, you still have a strong argument. Your case gets stronger the less related your modifications and the malady are. For example, to deny warranty coverage during the specified warranty period, the manufacturer must prove not only that you have done something in contravention to the warranty, but also that whatever you did actually caused the problem you're trying to get fixed. That is: Installing an alarm or a replacement shock will have no influence on, say, a cam-chain tensioner going south. This is obvious to us and, we hope, to most dealer personnel. But what if you have the tensioner problem but made other enginemodifications? Again, the OE has to prove, conclusively, that whatever you did created the problem. A slip-on muffler will not cause a tensioner to fail. A properly installed ignition advancer will not make the oil pump fail. Not only does Magnuson-Moss help you get the service you paid for, it creates a simplified method of redress. Warranty claims must be remedied by the repair or replacement of affected parts, including labor. If the dealership refuses to do the work as specified under the warranty, it is putting the actual warrantor—the manufacturer of the motorcycle—in breach of the warranty. (The dealership itself does not automatically become a co-warrantor, though it may be liable under other state laws for the merchantability of the product.) Generally speaking, the Act encourages informal arbitration of the matter outside the courts, but maintains the consumer's right to file suit for breach of contract. In this case, the consumer can sue for damages, replacement of the vehicle and loss of value, among other things, and, should he prevail, can recoup reasonable court and attorney's fees. It is the law of the jungle that the first line of defense has to be strong, and that's why many consumers get what amounts to a runaround. Warranty work doesn't pay the dealer as well as straight labor, and, understandably, manufacturers don't want to pay out any more in-warranty claims than they have to. What's more, the service people we know admit to having seen so many scam artists with obviously raced and/or abused motorcycles coming in for warranty work that they're primed to resist taking in more. Because of this, you need to be better than most—more levelheaded, better prepared, more reasonable—so that the dealership will take you as a serious consumer and not a sleazeball trying to get something for nothing. Magnuson-Moss may put the law in your favor, but getting warranty work done still takes effort on your part. Here are our recommendations: 1. Take care of your bike and document all work done to it Naturally, you do want the best for your big purchase, but if you're fond of burnouts or on-the-clutch wheelies, is it really reasonable to expect the manufacturer to keep you in clutch plates? As for documentation, build a log of all maintenance performed on the bike, citing date, mileage, the nature of the work and who did it. Retain your receipts for oil and oil filters or any other consumables. If you have a problem and can walk into the dealership with a thick folder showing that you have changed the oil at (or even more often than) the manufacturer's recommendations, you will be in a much stronger position to negotiate. 2. Do your homework. Chances are you're already part of some model-specific chat group or mailing list, and odds are equally good that endemic problems are well known among the cognoscenti. Find out how many others have had your problem, but be ready for the dealership to say, "We've never heard of that before." 3. Look up recall notices and Technical Service Bulletins. Recalls are available in their full text from www.nhtsa.org, and the TSBs are available in summary form. (You can get the full TSB, but it'll cost you.) In any case, the summary is usually enough to identify the problem area. If there's a TSB regarding your problem, bring it to the attention of the dealership. They're supposed to have these on hand. There may be other technical bulletins issued from the manufacturer to the service sector; it doesn't hurt to ask. (More likely, someone in one of the owners groups will have one.) 4. Be reasonable with the service staff. They're only human, and if you go in with a chip on your shoulder you'll have to work just that much harder to get what you want. If you're rebuffed by the first service writer, ask to see the service manager. If that doesn't work, talk to the general manager—and remain calm. Still stonewalled? Follow up with the manufacturer or distributor's customer-service division. Make it clear to everyone that you will not disappear; you intend to stay the course and get your problem solved. 5. Document all conversations and phone calls with the service department and ask to have denials of warranty work in writing. Create an accurate, thorough paper trail. 6. Don't threaten to sue at the first sign of trouble. Nothing turns off service personnel more than an outwardly litigious customer. Besides, the way the system works, you've still got a lot of steps to cover before you can reasonably file suit. Once you have broken through and the dealership has undertaken the warranty repair, it's still in your best interest to keep calm and document all conversations. And don't worry if your warranty is about to expire; once a problem has been brought to the dealer's attention, it must be repaired or the broken parts replaced until you are satisfied. If the dealer doesn't get it right the first time and the problem recurs, you have the right to go back and have it remedied, regardless of the status of the original warranty. Moreover, Magnuson-Moss stipulates that the time period and number of visits to complete the repairs must be "reasonable," or the warrantor is on the hook for the replacement or refund of the product. Although "reasonable" is difficult to define, it's generally considered that if a problem can't be fixed in three tries, "reasonableness" has run out. On top of that, many states have more specific "lemon laws" that might be even more stringent than Magnuson-Moss. www.mlmlaw.com...for a great layman's explanation of the Act.

CONSUMERS RULE - Thanks to the Magnuson-Moss Warranty Act, you, Mr. Happy Consumer, have more rights than you probably realize

Sport Rider Magazine, April 2004, pp. 88-92

by marc cook illustration by douglas fraser

YOUR NEARLY NEW SUPERSPORT HAS BEEN SOUNDING FUNNY lately. A distinct rattle in the morning is followed by a noticeable reduction in power. You're obviously concerned, and puzzled. After all, you've spent a lot of money and time taking the best care of your bike. It's got all the trickiest add-ons: the coolest pipe, a premier fuel-injection setup, an ignition advancer by some guy who used to work for the factory and high-end suspension upgrades. The whole shebang, in other words. This is your baby.

Finally, you decide the noise isn't getting rights varied tremendously from state to any better and, as your bike is still under the standard factory warranty, take it to the dealer for a look-see. The service manager listens to your concerns, gives the bike a cursory inspection (naturally the sound won't recur with him there) and proclaims, "It's nothing." But you know different and press the point. Finally, the service manager turns to you and says, "Well, anyway, you've modified the bike and that voids your warranty. We can open it up and see what's wrong, but we're going to charge you for that. And if we find something wrong, it won't be covered under warranty." Your inner devil wants you to drag this cretin over the counter and ventilate his skull, but your internal checks and balances give you the strength to merely nod, pick up your stuff and leave.

Welcome to the warranty dance. Although this is a fictional account, many like this transpire all over the country, day in and day out. And while we're certainly generalizing the dealership experience—some are much better and will jump into the job of troubleshooting your mystery noise without any pre-inspection blame storming—we've heard enough horror stories to suggest that just such an encounter is far from an anomaly. But here's the thing: That service manager is wrong. Dead wrong. (At least at this juncture. Until he's found what's wrong and can mount a case that it is your fault, it's not up to him to deny the claim or resist efforts to get to the bottom of it. More later.)

As a consumer you have a powerful ally in the Magnuson-Moss Warranty Act, a piece of groundbreaking law enacted by Congress in 1975 with the aim of giving consumers better information about written warranties and providing a system under which they could get satisfaction for warranty claims in a reasonable amount of time. Moreover, because this is a federal law, the stakes are considerably higher for manufacturers or distributors who do not abide by it; previously, this was the province of the states—and consumer state. Magnuson-Moss consolidated the rules and gave them bigger teeth. This is just the tool you need to be treated fairly by the dealer regarding your in-warranty motorcycle.

The Act applies only to written warranties (known as express warranties because they're stated, not because stuff happens fast) on consumer items. But even if an express warranty is not issued, state laws step in to provide another backstop in the form of "implied" warranties that cover two basic areas known as merchantability and fitness—basically, does the product do what it is supposed to do (compared to other products like it), and does it do what the manufacturer or the sales organization claims it does (a 125cc scooter obviously can't have a claimed top speed of 150 mph). Finally—and relax, we're almost through the hard part— there's the issue of full or limited warranty. Full basically covers everything for every owner until the end of time; naturally, motorcycle warranties are limited, set for a specific time period—usually one to three years and a set number of miles. (Massive props to the MLMLaw Web site [www.mrmlaw.com] for a great layman's explanation of the Act.)

Great, fine. But what does this mean for our motorcycle friend? First of all, the Act places a number of conditions on the language of the warranty itself, in that it must be clear and unambiguous. What's more, it must specify in very simple terms the conditions under which the warranty may not be valid. Cool. Sounds like the government has put all the power into the consumers' hands and basically put the manufacturers on the hook for any problems that occur within the warranty period. Well, not really. There are varying requirements the manufacturer can hold you to, and these generally include adherence to the prescribed maintenance schedule. Moreover, there is usually some language in the warranty that voids coverage if the bike is used for racing—though this is not generally construed to include track time for training purposes—as well as loopholes covering abuse and neglect.

For the warranty to be nullified with the addition of aftermarket parts, it must be spelled out clearly and explicitly in the warranty's text. What's more, the Federal Trade Commission, the agency charged with oversight of this law, takes a very dim view of blanket denials, such as a manufacturer saying your warranty is void if you make any modifications to the bike at all. Along the same lines, Magnuson-Moss prohibits something called tie-in coverage—this means that a company cannot make warranty coverage contingent on, say, dealer service only or the use of a specific oil brand. If you're told that if you don't take your bike in for the initial (usually 600-mile) service your warranty will be void, you've just heard a load of B.S. Still, someone is expected to perform the tasks set for the initial service, but it can be you or your mechanic buddy—just be sure you guys know what you're doing. The manufacturer usually can't be held responsible for negligence on your part.

In addition—and this is an important aspect of the law—to flatly deny warranty coverage the manufacturer must prove that you have done something to cause the problem. It's not up to you to prove that you have not. It's two different things to have the service writer say you're at fault and to have a large manufacturing concern go on record that you did the deed. Unless there are significant cases already on the books and the manufacturer can produce a genuine engineering study indicating that, say, your combination of pipe and chip will cause engine damage, you still have a strong argument.

Your case gets stronger the less related your modifications and the malady are. For example, to deny warranty coverage during the specified warranty period, the manufacturer must prove not only that you have done something in contravention to the warranty, but also that whatever you did actually caused the problem you're trying to get fixed. That is: Installing an alarm or a replacement shock will have no influence on, say, a cam-chain tensioner going south. This is obvious to us and, we hope, to most dealer personnel. But what if you have the tensioner problem but made other enginemodifications? Again, the OE has to prove, conclusively, that whatever you did created the problem. A slip-on muffler will not cause a tensioner to fail. A properly installed ignition advancer will not make the oil pump fail.

Not only does Magnuson-Moss help you get the service you paid for, it creates a simplified method of redress. Warranty claims must be remedied by the repair or replacement of affected parts, including labor. If the dealership refuses to do the work as specified under the warranty, it is putting the actual warrantor—the manufacturer of the motorcycle—in breach of the warranty. (The dealership itself does not automatically become a co-warrantor, though it may be liable under other state laws for the merchantability of the product.) Generally speaking, the Act encourages informal arbitration of the matter outside the courts, but maintains the consumer's right to file suit for breach of contract. In this case, the consumer can sue for damages, replacement of the vehicle and loss of value, among other things, and, should he prevail, can recoup reasonable court and attorney's fees.

It is the law of the jungle that the first line of defense has to be strong, and that's why many consumers get what amounts to a runaround. Warranty work doesn't pay the dealer as well as straight labor, and, understandably, manufacturers don't want to pay out any more in-warranty claims than they have to. What's more, the service people we know admit to having seen so many scam artists with obviously raced and/or abused motorcycles coming in for warranty work that they're primed to resist taking in more. Because of this, you need to be better than most—more levelheaded, better prepared, more reasonable—so that the dealership will take you as a serious consumer and not a sleazeball trying to get something for nothing.

Magnuson-Moss may put the law in your favor, but getting warranty work done still takes effort on your part. Here are our recommendations:

1. Take care of your bike and document all work done to it Naturally, you do want the best for your big purchase, but if you're fond of burnouts or on-the-clutch wheelies, is it really reasonable to expect the manufacturer to keep you in clutch plates? As for documentation, build a log of all maintenance performed on the bike, citing date, mileage, the nature of the work and who did it. Retain your receipts for oil and oil filters or any other consumables. If you have a problem and can walk into the dealership with a thick folder showing that you have changed the oil at (or even more often than) the manufacturer's recommendations, you will be in a much stronger position to negotiate.

2. Do your homework. Chances are you're already part of some model-specific chat group or mailing list, and odds are
equally good that endemic problems are well known among the cognoscenti. Find out how many others have had your problem, but be ready for the dealership to say, "We've never heard of that before."

3. Look up recall notices and Technical Service Bulletins. Recalls are available in their full text from www.nhtsa.org, and the TSBs are available in summary form. (You can get the full TSB, but it'll cost you.) In any case, the summary is usually enough to identify the problem area. If there's a TSB regarding your problem, bring it to the attention of the dealership. They're supposed to have these on hand. There may be other technical bulletins issued from the manufacturer to the service sector; it doesn't hurt to ask. (More likely, someone in one of the owners groups will have one.)

4. Be reasonable with the service staff. They're only human, and if you go in with a chip on your shoulder you'll have to work just that much harder to get what you want. If you're rebuffed by the first service writer, ask to see the service manager. If that doesn't work, talk to the general manager—and remain calm. Still stonewalled? Follow up with the manufacturer or distributor's customer-service division. Make it clear to everyone that you will not disappear; you intend to stay the course and get your problem solved.

5. Document all conversations and phone calls with the service department and ask to have denials of warranty work in writing. Create an accurate, thorough paper trail.

6. Don't threaten to sue at the first sign of trouble. Nothing turns off service personnel more than an outwardly litigious customer. Besides, the way the system works, you've still got a lot of steps to cover before you can reasonably file suit.

Once you have broken through and the dealership has undertaken the warranty repair, it's still in your best interest to keep calm and document all conversations. And don't worry if your warranty is about to expire; once a problem has been brought to the dealer's attention, it must be repaired or the broken parts replaced until you are satisfied. If the dealer doesn't get it right the first time and the problem recurs, you have the right to go back and have it remedied, regardless of the status of the original warranty. Moreover, Magnuson-Moss stipulates that the time period and number of visits to complete the repairs must be "reasonable," or the warrantor is on the hook for the replacement or refund of the product. Although "reasonable" is difficult to define, it's generally considered that if a problem can't be fixed in three tries, "reasonableness" has run out. On top of that, many states have more specific "lemon laws" that might be even more stringent than Magnuson-Moss.

www.mlmlaw.com...for a great layman's explanation of the Act.