APPELLATE VICTORY AGAINST MERCEDES BENZ USA

On behalf of its client, Azubueze Jiagbogu, Norman Taylor & Associates won a decisive victory against Mercedes Benz USA on issues relating to offsets claimed by manufacturers for years in computing how much a consumer was entitled to in a lemon law case. In addition, the court of appeal put to rest an old defense practice of creating confusion for juries in determining whether a consumer's vehicle qualified for a refund or replacement under the law.

The Second Appellate District Division Four issued a unanimous decision authored by Justice Epstein on three critical areas:

1. Can continued use of a motor vehicle constitute a waiver of the consumer's rights under the Act [Song Beverly Consumer Warranty Act]?

The Court of Appeal said, NO.

If manufacturers had prevailed in this, consumers after requesting relief under the act would have to park their vehicle and walk to work, take buses or taxis, or borrow a vehicle from a friend or relative. Knowledge of the law is not required to see the absolute absurdity of this.

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May manufacturers get an equitable offset for use of the defective motor vehicle requesting relief under the act?

The Court of said, NO.

The Act is very clear regarding mileage offset for use before the vehicle is bought back. It is calculated per a well-defined formula and includes only the mileage up to the first time that the vehicle is presented to the manufacturer or its repair facility for a defect for which the vehicle is being rejected. Thus if the vehicle manifested the defect at 3500 miles, the offset may only be calculated with that number. If the court had accepted the defense's argument, all mileage from 0 to 100,000 miles or more could be offset. The effect could be that the vehicle manufacturers would end up paying the consumer nothing at all, or very little. From this it is easy to see where this foolishness originated.

Can a manufacturer get the presumption instruction when the instruction is unavailable to the plaintiff?

The Court of Appeal said, NO.

This little bit of obfuscatory nonsense is quite subtle. The presumption states the following:

A consumer in a lemon law case must prove that the manufacturer was given a reasonable number of attempts to repair the vehicle. In California, for example, there are several ways for consumers to establish the presumption that the manufacturer had a reasonable number of repair attempts. The presumption is established if any of the following occurs within the first 18 months or 18,000 miles:

· The same defect is subject to repair four or more times; or

· The same defect is subject to repair two or more times, and is a serious safety defect that is likely to cause death or bodily injury; or

· The vehicle is out of service for repairs for a cumulative total of more than 30 days, for any combination of defects.

Thus, if a California consumer proves that a vehicle has been subject to repair four times for the same problem within 18 months or 18,000 miles, then the judge will tell the jury that the consumer has met his burden of proving that the manufacturer had a reasonable number of repair attempts.

So far, so good: but what if the consumer had two repairs before 18 months or 18,000 miles and 7 after? The presumption does not apply, however nothing in the lemon law suggests that therefore the vehicle is not a lemon. If however, the manufacturer's attorneys could get the Judge to include the presumption language included in the jury instructions, the last thing the jury would hear is 18 months and 18,000 miles, and this, coupled with the two repair attempts, would mean that a perfectly legitimate lemon law case could be unfairly lost for the vehicle owner. The Appellate Court understood this and rightly ruled against.

(Source: normantaylor)

Does husband have marital right to rape his wife?

There was once a generally accepted legal doctrine that men could not commit the crime of rape against their wives. This was evident by the pronouncement of Sir Matthew Hale in his History of the Pleas of the Crown, where he said that the husband cannot be guilty of a rape committed by himself upon his lawful wife. Hale’s justification for his statement was that, on marriage, the wife gave up her body to her husband and gave her irrevocable consent to sexual intercourse.

However, by the 20th century, social circumstances and attitudes had changed so much that the law had reached a state of crisis that required the total rejection of the doctrine. In R V CLARKE, Byrne J held that the husband’s immunity was lost where the justices had made an order providing that the wife should no longer be bound to cohabit with the defendant. In R V STEELE, it was held that where a husband and wife are living apart and the husband has made an undertaking to the court not to molest he wife, that is in effect equivalent to the granting of an injunction and eliminates the wife’s implied consent to sexual intercourse. So, the courts had developed the doctrine the implied consent as a means of mitigating the stark harshness of Hale’s original doctrine.
 

However, in R V J(RAPE:MARITAL EXEMPTION) (1991), the argument was bases on statutory interpretation. The wording of s.1(1) of the Sexual Offences (Amendment) Act 1976 provided that a man commits rape if he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it. The contention was that the Act of 1976 provided a statutory definition of rape and that the only possible meaning which could be ascribe to the word “unlawful” was “illicit”, effectively meaning outside the bounds of matrimony. Consequently, Parliament’s intention must have been to preserve the husband’s immunity.


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Thus stood the authorities when R V R was heard by the Court of Appeal in 1991. The court was clearly of the view that the ancient rule had to be removed, but how was that to be achieved?


Lord Lane, who delivered the decision of the court, stated that “the abolition of a rule of such long standing is a task for the legislature (Parliament), and not the courts. Ever since the decision of Byrne J in R V CLARKE, the courts have been paying lip service to the Hale proposition, whilst at the same time increasing the number of exceptions, the number of situations to which it does not apply. This is a legitimate use of the flexibility of the common law which can and should adapt itself to changing social attitudes. Where the common law rule no longer even remotely represents what is the true position of a wife in present day society, the duty of the court is to take steps to alter the rule if it can legitimately do so in the light of any relevant parliamentary enactment.”


In respect of Hale’s proposition, the court had to say that it never was law.


The statutory provision of 1976 remained and was dealt with as follow – “the only realistic explanation seem to us to be that the draftsman either intended to leave the matter open for the common law to develop in that way….or, perhaps more likely, that no satisfactory meaning at all can be ascribe to the word and that is indeed surplusage.”


HOUSE OF LORDS unanimously followed the decision and reasoning of the Court of Appeal. Their Lordships agreed that Hale’s pronouncenment never was law; it was always a fiction that had infiltrated the common law. As for the interpretation of the Sexual Offences (Amendment) Act 1976, the appearance of “unlawful” was mere surplusage. Subsequently, the word “unlawful” was removed from the definition of rape under the Criminal Justice and Public Order Act 1994.


Thus the fiction of marital consent was removed forever, and stands the law in UK that a man can be liable for the crime of rape against his wife. The law was declared that a rapist remains a rapist subject to the criminal law, irrespective of his relationship with his victim.