What do you sue for in a breach of warranty case when no other repair is available?

Question

We purchased a spa from a local dealer and had it delivered approximately one year ago. We immediately reported that over 50% of the jets were not working or working poorly, and were also not adjustable. Since then we've gone back and forth with the seller, with them insisting that they will only replace the jets if we pay several hundred dollars for a warranty trip fee, plus the cost of the jets and labor if they deem the problem not their fault.

I'm unwilling to agree to the above because I don't believe the warranty trip fee is valid, as they have breached the initial contract by not delivering the spa in working order. So this is a contracts issue before a warranty issue (even if I accepted that a "warranty trip fee" is anything other than criminally unethical). Further, I'm unwilling to put the determination of whether they are at fault or not solely in their hands, as that gives them complete freedom to avoid responsibility. In any case, both they and the manufacturer are no longer responding to me.

Normally in a case like this I'd look for the next closest authorized servicer, pay them to come out and do the repair, then sue the seller for the cost of said repairs. However, the next closest servicer is 82 miles away and won't go outside their area. And even if we could get the seller to respond, they will not come out unless we agree to the conditions noted above, which I won't agree to as I believe that would constitute a settlement and negate my right to sue for the charges back. So we're now in the position of owning a $6k spa that doesn't work right, and that cannot be serviced (because the seller will no longer respond).

In this case I'm unsure how to quantify the damages, as no amount of money will allow us to get a spa in working order as agreed upon in the original contract. Do we sue under breach of contract and demand the return of 100% of our money and for them to come take the spa? Is there some legal value placed upon a warranty that we can sue for? Do we hire a non-authorized servicer and sue for their cost plus the cost of any future issues caused by them being non-authorized? Do we sue under some theory of 'emotional suffering'?

What is the appropriate way to quantify this case for submission to small claims, given that the courts cannot technically compel the seller to service our spa?

Answer 1

There are a number of issues here. One is whether they can charge a warranty trip fee: that would depend on what the contract says – such fees are possible (but may be prohibited by state law). Such a charge could be motivated by the manufacturer not compensating a dealer for warranty repair travel (also by granting a low number of hours of compensation for a warranty job). The second is whether you are at fault, the dealer is at fault, or the manufacturer is at fault: and, what evidence is there for that conclusion. A standard approach is to get an independent expert to look at the problem and determine what the probable cause of failure is – that may however be impossible. In that case, you are pretty much at the mercy of the dealer's employees, who hopefully will write up an accurate assessment of the problem. Especially if the manufacturer and seller are not responding, you can't count on ordinary business goodwill to ease the process.

If the seller can legally charge a warranty trip fee, then you can't legally force them to perform service without paying the fee. If they can't legally charge that fee, then you have a different problem, because they should have come and repaired the unit. They are not, however, obligated to replace the defective stuff or give a refund (without court order), assuming that your state does not have a spa lemon law (I've never heard of such a thing: lemon laws are about new vehicles).

If the dealer and manufacturer simply refuse to service your unit, the basic scheme would be to get it repaired by someone else (at whatever cost) and sue after the fact for damages – that's not at all a risk-free proposition. Alternatively, you could sue one or both for specific performance, i.e. get the court to force them to fix the problem, but as you know that is beyond the reach of small claims court. Or, you sue for a refund of the sale price (up to the state limit). The sale price should be easy to establish; dealer and seller refusal should be easy to establish (but be sure that you don't extrapolate from "refuse to do in a way I want" to "refuse"). Having the evidence in hand is mandatory. Evidence of non-functioning shouldn't be too hard, and you would also need to show that you are not the cause of the spa not functioning. If they have some fact in their possession that constitutes evidence that you are to blame, you have a right to see that evidence (through discovery), and they can do likewise to you.

If their refusal is based on your insistence that they drop the trip fee but they will do the work if you pay the fee, then you could do that, and if the fee is not legal, then you can sue to recover that amount.

There is nothing special about suing for a refund vs. suing for the cost of repair, in terms of what small claims court does.