TTAC commentator minion444 writes,
At the end of May, I bought my wife a new ’08 Mazda Miata. She was feeling left out, because I have my motorcycle and it was our 25th Wedding Anniversary. We took delivery on Sat. On Sunday, it was very overcast and saw that the nose (bumper) cover was touched up in the center. About a 1 foot square. The dealer called us on Monday morning bright and early to thank us and ask us how the we liked the car.
I told him we noticed the car was damaged and re-painted. He said he had no knowledge of it and that he would check it out and told us to bring it in. The car was originally delivered in PA and I bought it from a NJ dealer. When we brought it in, he admitted that the car was touched up and told us he would repair it as new. He is in the process of painting the bumper for the second time now. The 1st time, the color was too dark.
Do, I have any legal remedy here? I bought a new car and expected a new car? Was he legally bound to disclose the original damage?
Sajeev replies:
Last time I checked the rules in Texas, a dealer must disclose damage on a new car. Question is, who is at fault? Maybe the NJ dealer picked up the PA Miata and never got a heads-up as to its condition. Or maybe they never checked.
It’s good to hear that the dealer “admitted the car was touched up” and is trying to make it right. Unfortunately, you are at the mercy of the dealer’s body shop: normally a third party affair with little to no connection with Mazda.
And the horror stories I could tell you about dealer body shops! I betcha they blended the bumper the first time, and the second attempt is a full re-spray (if you are lucky). If that doesn’t work, it’s time to get tough. Maybe you’ll need a lawyer, or take the dealer to small claims court for a re-spray at a reputable body shop elsewhere. If so, get their admission of guilt on paper, lest the burden of proof rest on your shoulders after you took delivery.
Good luck, but I hope you won’t need it.
[Send your technical queries to mehta@ttac.com]
I think you have legal recourse to back out of the whole deal. They broke your contract by not delivering a “new” car.
It sounds like the most likely scenario is the dealer you bought it from (in NJ) had the car traded in from the PA dealer, and the PA dealer just never passed along the info that the car had been touched up. Alternatively they could have passed along the info, and it never got into the hands of the right people to put a notice on the car, if NJ law requires that.
I’m not sure of the law in NJ, but I doubt you have much in the way of legal recourse. As long as the dealer is playing nice and trying to get the problem taken care of I’d hold back any legal threats, more flies with honey and all. When you purchased the car, you had the opportunity to inspect it to see if there was any damage. The car was still new when you purchased it even if it had required some touch up – all new means in terms of new vs used cars is that a new car has never been titled. A car can have several thousand miles on it, have had the bumper painted or replaced, and can even have been delivered to a customer and taken back if credit didn’t go through, it is still a new car until it is titled in a purchaser’s name (or given a junk/salvage/flood title).
This happened to a friend a few years back with a new Porsche. Shortly after taking delivery, they noticed when the light hit it right that there was paint work on the hood. They complained to the dealer, who looked through their files and confirmed the touch-up work they did after the car was damaged while unloading from the car carrier. The dealer actually said it was pretty common and not to worry about it. When pressed, they said that in Virginia a dealer does not have to report to the consumer repaired damage to a new car if the cost of the repair was less than $400. Naturally, the captive body shop had valued the repair at less than that limit. Your state may be different, but I’m guessing that the dealers there have more clout at the capital than consumers.
They were stuck with the car. The good part of the story is that they immensely enjoyed the car for nearly a decade before trading it in on a different Porsche.
Since the dealer is working with you on the Miata, I’d start by working with them. A repainted bumper is not that big a deal. Maybe you can negotiate for something else useful to you but not that expensive for them, say a dealer-added option or a discount on service or something.
Look up BMW, lawsuit, misrepresentation in google, print off the results and drop it off at the dealership. Position it as a friendly hint. They didn’t notice it (they are careless) or they noticed and hoped you wouldn’t (they are shifty). In either case, make sure it is PERFECT before you sign any release. Or go the Small Claims route. It’s slow, but it does work.
New cars do occasionally get bumps and bruises during transport, or while on the dealer lot. It happens, I’ve dealt with my fair share of it. HOWEVER, the dealer is supposed to tell you about it (at least here in TX, as noted above), and to cover your ass and theirs they should have you sign a disclosure. I would think that the dealer would have done a better of fixing the damage on a new car though, that causes me to raise a brow. If they’re not concerned enough to fix the damage the right way on a brand new vehicle, how well are they going to fix future issues that you may have? To check on legal recourse, I’d contact an attorney, but if it’s fixed correctly (with maybe an “extra” thrown in) why worry?
This issue was actually the basis of a very significant, very controversial Supreme Court decision on punitive damages that has served as precedent for cases as wide ranging and the Valdez disaster:
http://en.wikipedia.org/wiki/BMW_of_North_America,_Inc._v._Gore
http://www.law.cornell.edu/supct/html/94-896.ZO.html
The plaintiff was originally given $2 million, but on remand from the US Supreme Court, following its guidelines, the Alabama Supreme Court awarded final punitive damages of $50,000, so that’s what you should be looking for on this Miata issue ;)
http://www.inscobadfaith.net/information/bad_faith_coverage_disputes/7.html
Good job picking a 2008 (I bet you got a sweet one for well under $20K), I think 2008 is going to be the year to own from this generation; most of the kinks were worked out, but before the ugly, shit-faced-grin, in total disharmony with the rest of the design new nose was affixed for 2009.
There is the NJ Lemon Law, which could force the dealer to take back the car and refund all monies if they fail to repair a defect that “substantially impairs the use, value or safety of the vehicle”, after 3 attempts to repair it. Lawyers take these cases on contingency because the dealer has to pay your legal fees if you prevail. However, it doesn’t sound like the value is substantially impaired in your case – but you can call one of these firms and get a free opinion if that’s the way you want to go. You may do better negotiating with the dealer for some money back.
In Indiana, a dealer is legally obligated to disclose any damage/repair to a new vehicle that it knows about. A number of years ago, a dealer sold as new a vehicle that had been wrecked on the lot and repaired. He got hit with punitive damages. (As an aside, I had a case against the same dealer several years later. This time, the wrecked car was sold to one of the guys in the bodyshop, who fixed it and then had the sales guys sell it. Unfortunately, they sold it as a “demonstrater”, and did not disclose the wreck/repair. I resolved this one on very favorable terms for my client.)
I suspect that you have a good argument to back out of the deal. It’s one thing to know you are buying a car with slight damage and to dicker accordingly, but this was not disclosed to you. Either your dealer knew about it and shouldn’t complain, or it did not, in which case it should have recourse against the dealer it got the car from.
In hindsight, you might have been better off to back out right away. Now that the dealer has some money wrapped up in repair, he may not be as easy to get along with. You ought to talk to an attorney in your state, then you will have an idea how hard to push.
Why do I have a feeling this is Ramsey Mazda? My friend was looking for a Miata there and got jerked around. In my area there is only Ramsey and Palisades Mazda and neither are good dealers. Shame really.
I got my ’08 Miata from Ramsey and it was an OK experience, but I’ve had much worse in the past when I tried to buy a 6.
Enjoy the Miata though… it’s tons of fun!
I don’t have any experience with buying a new car and not getting what you expected, but a friend of mine bought an ’02 Civic certified used from a Honda dealer and later found out it was in an accident and they did not put the transmission back in correctly. The dealer claimed that the accident did not show up on Carfax. I wish I was there when she was shopping for it because it was obvious that the car had been repaired if you opened the hood. The dealer said there was nothing he could do and she kept the car.
Also, that’s not an ’08 Miata (anal rant over).
before the ugly, shit-faced-grin, in total disharmony with the rest of the design new nose was affixed for 2009.
Little known fact that Pixar bought out Mazda after the 2008 model year.
I remember doing a “locate” purchase on a ’82 MB 240D. I picked the car up the evening of July 3 from the dealer.
When I got it home, I did my usual wax routine (yes, that night-I was young) and noticed the dark blue paint was coming off on my rag. The next morning, under closer inspection, we discovered the whole top of the car- the hood, roof, and trunk was resprayed.
I called the dealer on July 5th, and they admitted it was damaged by a chain in transport. Nothing like telling me in advance.
After I hung up, I stopped payment on the check, took the car back to the dealer and turned in the plates.
The only bad thing was I traded a car in on it. and my trade was lost- the whole thing was cluster of expensive lessons.
BD
PS. My experience with resprayed flexible bumpers is not good, almost always the paint peels and chips prematurely from lack of preparation, or shorting the flex additive (which is very expensive)to the paint mixture.
I used to be a new car inventory manager here in Houston a long time ago. You would be amazed at the number of new cars that arrive with transportation damage. They all get painted and repaired but no one was told and the client was never informed.
Making generalizations about painters is another matter. In the old days, you did not paint for a dealership unless you had your poo poo in one pile. Things may be different now but we always had nothing but the best painters, especially for warranty paint which, at the time, was dedicated to two highly skilled and very good painters. They were not part of the customer pay body shop.
I wish Minion444’s wife the best of luck. Almost everyone I have known that bought a Miata sold it or was nearly fatally killed in one. They are just too small to be safe. You can be the best driver but they are hard to see and that is how accidents happen with these cars. I would not put my loved ones in a small car like this.
You also have to consider that a car with any paint work will take a major hit in the resale value, because when a buyer sees that it’s had paint work they will automatically assume it was in a major accident that you are not telling them about. So be sure to keep all documentation of what the dealer did, for when the time comes to sell it.
westcott : Making generalizations about painters is another matter. In the old days, you did not paint for a dealership unless you had your poo poo in one pile. Things may be different now but we always had nothing but the best painters, especially for warranty paint which, at the time, was dedicated to two highly skilled and very good painters. They were not part of the customer pay body shop.
You didn’t work at the Houston dealerships my family went to. My nightmare story was back in 1988, but even today some sales guys I know will not recommend the in house body shop to their (valuable) customers.
Honestly, as dealers go by the wayside, I think this problem will fix itself.
Back in 2006 I also bought a Mazda from NJ (Mazda of Lodi) and there was a 2 inch dip scratch on the rear bumper, I live in NYC and knew that this scratch would mean nothing after a while since it’s pretty hard to keep a clean bumper in Manhattan. In any case, the dealer told me I can take the car and bring it back any time for the repair, I gave him the car for repair after a week and he gave me a loaner car, after 3 days the car was ready, It was impossible to see that it was repaired, perfect job and the color is Black Mica.
It’s a shame your dealer basically hide the fact it was repaired from you.
I pray that minion444’s MX-5 was not one of the hundreds of Mazdas damaged on the Cougar Ace.
The Cougar Ace was the ill-fated cargo ship that tipped over, but did not sink, off the coast of Alaska.
Fat chance that it’s a Cougar Ace Mazda. As the WSJ reported, “The Japanese car maker, controlled by Ford Motor Corp., easily could have found takers for the vehicles. Hundreds of people called about buying cheap Mazdas. Schools wanted them for auto-shop courses. Hollywood asked about using them for stunts.
Mazda turned everyone away. It worried about getting sued someday if, say, an air-bag failed to fire properly due to overexposure to salty sea air.”
I believe it varies state to state. I am a manager at a Mercedes Benz Dealer in St. Louis. We disclose all damage and paint work on all used and new cars. The customer must sign a document. We do this not because of regulations, more so because its a good practice. We are required to disclose carfax issues. We keep a signed carfax on file for every vehicle sold.
People never seem to have a problem with paint work or accidents when you disclose it up front. Before I was in the Benz business I sold Porsche and Audi for a long time. Even the porsche people where fine with damage as long as you brought it up. If they discovered it during the PPI or something, that was a deal breaker.
I insert a clause in the sales contract that the car will be new and unused with an odometer reading not exceeding 30-miles and that it will have not more than $100 of repaired pre-delivery damage.
This happened to me with my first new car, a Ford Mustang GT. There was some touch up work on the rear quarter panel right over the wheel; I didn’t notice it until I owned the car for quite a while. By that time it was too late to mention it.
I loved that car anyway!
If the dealer is making a good-faith effort to fix the car, then don’t be an a-hole and start threatening legal action. That will put you and the dealer in an adversarial relationship, which is the last thing you want. Remember, its just paint.
Hi,
We once took a car to Honda and to Acura when we were considering trading it several years ago. I’d hit a deer (minimal damage) while driving in NoVA and Radley Acura in Arlington, VA recommended a place where they take “all their Acuras” for light work needed by cars damaged during shipment or otherwise (that reads strange, huh?)…
Short side of the story is that although the work looked great, when we later took the car for a trade, both dealers knew that the paint wasn’t factory by measuring the thickness (thicker than original, even though the bumper was replaced and done from primer). Although ultimately sold privately so it didn’t matter, the paint work on your MX-5 had better be good – if you ever consider trading up or out, you might get a hard time for it – and no document (in our case, from a place recommended by said dealer) will change their minds…
this may have been covered already but,when I worked at a Honda store any new car with damage repair was issued a special written statement to the buyer as to damage and repair while in the Dealers possession.
Of course it didn’t apply to cars that were damaged b-4 dealer took possession…
hope this helps..
THanks, for all the responses.
We got the car back from the dealer. It was Hamilton Mazda in NJ.
THey have tried to be very accommodating. Going so far as to pick up the car and leave my wife a loaner. The nose cover was removed and painted off the car. They took the time to match the paint properly and put everything back together. (third try)
We got a great deal on it, Mazda was giving $5k rebates. The car will be detailed by the dealer on the first service.
I bought a new 83′ Ford Escort GT. It was my first new car (I sold my 68 GTO for it!, What was I thinking!) It had a baseball size dent in the front fender. Dealer told me it was there and arranged to fix it on the first service. It was fine.
I was really put off that this was not disclosed at purchase. You could not see the repair in the sun, only when it was overcast.
Let’s talk about Miata’s. I ride motorcycles and love cars. I hadn’t driven a Miata since the 1st gen. I am 6’4 and it doesn’t really fit me. My wife finally let me drive it. WOW! It cost only $4k more than my motorcycle and it is amazing. To feel the road in a car, like a proper roadster, brought me back to the days of driving with my dad in his 61 MGA with Glass Pack Mufflers. It may be a chicks car, but I will drive it as often as she lets me.
Ride Fast….
David