As you know, this author has handled thousands of consumer complaints whether from responding to a letter, getting involved with the Attorney General’s office, administrative hearings, or consumer litigation. Other than a few dealerships, the vast majority do not have a procedure to effectively handle customer complaints, especially those that spiral out of control into […]
Under the Perishable Agricultural Commodities Act (“PACA”) there are very specific protections for growers and sellers of produce. In particular, PACA specifies the need for prompt payment terms which means payment in full within 10 days of the buyer’s acceptance of the produce. See, 7 C.F.R. §46.2(aa). The payment terms between the parties can never […]
First, these are ideas I have formed after reviewing a lot of information on EV batteries. You have to educate yourself and perform additional research. Further, it is imperative that you consult with your insurance company for appropriate coverage and guidance. Automobile dealerships are and will be required to store EV batteries on their premises whether […]
Congratulations to Weston Hurd’s John Farnan and Dan Richards. In a May 24, 2023 opinion, in Lamorak Insurance Co. v. Goodrich Corporation, the Summit County Court of Common Pleas ordered that their client, an insurance carrier, did not owe an additional $110 million of insurance coverage to Goodrich for an environmental loss claim. The matter involved […]
I know how to read a Buyer’s Order and reconcile the math. My office consistently receives new consumer lawsuits alleging issues with the sales transaction, pricing of the vehicles, and advertising. At times when reviewing the sales contract, we have to dig hard to figure out how the sales price was derived. This can be […]
Set yourself up for a positive bargaining experience by understanding the negotiations landscape as we continue to navigate the post-pandemic era. “While some aspects of bargaining remain constant, 2023 certainly has some unique challenges in store,” according to the authors – Weston Hurd partners Megan E. Greulich and Eric J. Johnson, “From COVID-19 exhaustion to […]
As springtime approaches and the growing season kicks off, conducting a bit of housekeeping now can be indispensable in protecting your business down the road. Factors to consider include: All PACA license information should be up-to-date. This will only take minutes but can prevent a plethora of problems. All invoices should contain the exact statutory […]
Weston Hurd’s 2023 – Desktop Legal Primer for Ohio Claims serves as a comprehensive go-to-guide and useful reference tool. Researched and written by Weston Hurd attorneys, the Primer contains Ohio statutes, case citations, and covers topics involving: Claim Limitation Periods – Statutes of Limitation; Product Liability Statute of Repose; Construction Statute of Repose; Legal Malpractice Statute of Repose; […]
As you know, this author has handled thousands of consumer complaints whether from responding to a letter, getting involved with the Attorney General’s office, administrative hearings, or consumer litigation. Other than a few dealerships, the vast majority do not have a procedure to effectively handle customer complaints, especially those that spiral out of control into litigation. Of course, there are always going to be unreasonable consumers who demand the sun, moon, and stars for every perceived grievance but there are a lot of situations that, if handled properly from inception, could have been resolved quickly and result in good customer relations. In my opinion, very few consumer issues should actually reach the very top level of dealership management or ownership unless directed otherwise. It should be effectively resolved at the managerial level coordinated with an individual who is tasked with resolving customer issues. I am just going to provide some ideas regarding procedures a dealership should establish.
Remember, resolving consumer problems at the inception is absolutely vital for customer satisfaction, protecting your reputation and maintaining a long-term relationship.
It is my opinion that there should be a dedicated person at the dealership tasked with proactively addressing a consumer issue once it occurs. Obviously, that individual can be a general manager or a person who has been specifically hired to perform the task. The individual needs to have latitude to immediately make decisions to handle the situation. For more involved situations, the appropriate information should be accumulated, employees and managers interviewed to obtain the dealership side of the story and, if possible, then talk to the consumer in order to come to a resolution. There needs to be a clear established process within the dealership in order to resolve the consumer issues. Everybody involved needs to know the process and who ultimately interfaces with the customer. The policy/process needs to be transparent, easy to follow, and available to every consumer. In fact, you could provide a display in your service or sales departments indicating, for example: If you are not 100% satisfied with our sales or service, please “see” and provide an individual. Remember, empathy, whether or not the customer is right or wrong, will go a long way to resolving any issues.
When a customer complaint is identified, the response should be prompt and professional. For example, acknowledge the customer’s issue, insure that the issue will be addressed, again, investigate the matter with your employees, and keep the customer informed. Do not let it fall through the cracks. Communication is the key. Further, keep detailed records of any and all interactions with the customer, conversations, emails, and other communications including the date, the topic of the discussion, action taken, and resolutions offered and hopefully, accepted. These items will be invaluable if the issue cannot be resolved and proceeds to further legal action. Also, it may help in refining and perhaps streamlining the store’s internal process. I found through experience that detailed communication records are necessary in defending unfounded complaints.
Obviously, if the matter escalates to correspondence from a consumer’s legal counsel, discuss the matter with your attorney immediately for an appropriate response. It is my very strong recommendation that the dealership does not try to resolve an issue with the consumer’s attorney directly inasmuch as statements, offers, or resolution can become misconstrued and utilized against the dealership. Do not negotiate against your best interest. Finally, learn from the complaints and resolutions and refine your policies and procedures.
The most frustrating thing I run across is when a consumer issue falls through the cracks which could have easily been resolved. Obviously, the consumer’s legal counsel is not working for free, so in the long run it is going to cost the dealership more to resolve the matter than if it had been handled properly at the beginning. Naturally, there are some individuals that you will never be able to placate, however you go through the process until such time as you draw the line in the sand and say that’s our last best offer and let the consumer do whatever he or she is going to do. Again, maintain your communications and paperwork.
Under the Perishable Agricultural Commodities Act (“PACA”) there are very specific protections for growers and sellers of produce. In particular, PACA specifies the need for prompt payment terms which means payment in full within 10 days of the buyer’s acceptance of the produce. See, 7 C.F.R. §46.2(aa). The payment terms between the parties can never exceed 30 days. Payments terms beyond 30 days voids your PACA trust protection.
What can growers and sellers do if a buyer regularly asks for extensions on payment terms or stops answering your calls once late with payment? Time is critical in this situation. Growers and sellers should consider acting quickly since their claims may take priority over other creditors who are also pursuing the buyer. There are various methods and tactics which are only available to growers and sellers if the claim is brought quickly.
What if a buyer makes claims that they will be forced into bankruptcy? A perfected PACA trust creditor has priority over almost all other creditors in a bankruptcy and are typically the first to be paid. The bankruptcy court necessitates that all paperwork be in proper order including invoice language and payment terms.
PACA issues can be complex, and we encourage you to reach out with any questions or concerns about your specific circumstances.
This article appears in the Spring 2023 issue of the Ohio Produce Growers & Marketers Association newsletter.
First, these are ideas I have formed after reviewing a lot of information on EV batteries. You have to educate yourself and perform additional research. Further, it is imperative that you consult with your insurance company for appropriate coverage and guidance.
Automobile dealerships are and will be required to store EV batteries on their premises whether for potential service issues or post service storage for warranty purposes. Proper storage of these batteries is crucial to ensure safety and maintain their efficiency. The following are some ideas to help mitigate potential risks and possibly aid the lifespan of the batteries.
Establish a specific storage area within the dealership for EV batteries. This area should be well ventilated, adequately lit, and equipped with fire suppression systems. It should be accessible only to authorized personnel and protected from unauthorized entry.
Develop a set of handling and transporting guidelines for handling within the dealership. Again, only trained personnel should be allowed to move or install batteries, in compliance with the manufacturer’s specifications. Further, provide appropriate moving and installation/removal tools and equipment, to prevent mishaps.
Based on manufacturer recommendations provide a controlled environment for battery storage, for example temperature and humidity.
Since you are now required to have the appropriate manufacturer EV charging stations make sure the batteries, in storage, have sufficient or a full charge.
Obviously, store the EV batteries pursuant to manufacturer recommendations, for example, battery racks or shelving systems, a labeling system to keep track of battery information such as manufacturing dates, serial numbers, and the state of charge.
Have your trained personnel regularly check the EV batteries for any signs of damage or deterioration and create a maintenance schedule to perform routine checks. Again, pursuant to manufacturer recommendations.
It is important that personnel are properly trained and have a safety training program. The trained employees should know how to appropriately respond to emergencies.
EV batteries are considered hazardous as is evidenced by the videos we have seen of EV vehicle fires. Therefore, there is a risk of significant property damage to the dealership facility. Again, check your insurance coverage.
EV battery incidences can lead to property damage and a disruption in business operations. Again, check with your insurance company for business interruption insurance.
Storing EV batteries pose a risk for various reasons that can cause damage or injury for which the dealership could be held liable. Again, check with your insurance company.
EV batteries contain hazardous materials that can be harmful to the environment if not handled properly. In the event of a battery leak or damage, there is a risk of soil or water contamination. Cleanup costs associated with environmental damage may not be covered by standard insurance policies, necessitating specific environmental liability coverage. Again, check with your insurance company.
As stated herein, establish training and safety/inspection protocols and follow them!
It’s important for you to review your existing insurance policies and consult with your insurance providers to ensure appropriate coverage for the specific risks associated with storing EV batteries. The dealership should also consider additional specialized insurance options, such as hazardous materials coverage or specific battery storage endorsements, to address the unique risks posed by EV batteries.
Again, these are merely suggestions, you have to perform your own due diligence and follow the recommendations of your manufacturer, insurance company, and any other expert you retain for advice.
Robert A. Poklar – 216.687.3243 – rpoklar@westonhurd.com
Congratulations to Weston Hurd’s John Farnan and Dan Richards. In a May 24, 2023 opinion, in Lamorak Insurance Co. v. Goodrich Corporation, the Summit County Court of Common Pleas ordered that their client, an insurance carrier, did not owe an additional $110 million of insurance coverage to Goodrich for an environmental loss claim.
The matter involved the issue of whether the occurrence coverage limits for a multiyear policy provides a single coverage limit for the entire three-year term of the policy or an annual limit which applies per year for each of the policy years.
The Court was asked to construe a three-year insurance policy that was in place between 1969 and 1972 with a $40 million coverage limit and another policy that was in place between 1972 and 1975 with a $15 million coverage limit. After paying out $40 million on a prior policy and $55 million on the two policies at issue, the carrier took the position that those payments exhausted the policy coverage. Goodrich disagreed, arguing that it was entitled to an additional $80 million under the 1969-1972 policy and an additional $30 million under the 1972-1975 policy.
Farnan and Richards worked as co-counsel with the Philadelphia law firm of White and Williams. The team prevailed on the argument that each of the two policies at issue provided a single per term coverage limit and since the carrier had already paid out a total of $55 million, under the two polices, that it owed no further coverage.
The Court agreed, holding that Goodrich is limited to the per term policy limits and not to annual per year limits, rejecting the argument that the policy language was ambiguous and ruling that the carrier did not owe an additional $110 million in insurance coverage on the environmental claim.
I know how to read a Buyer’s Order and reconcile the math. My office consistently receives new consumer lawsuits alleging issues with the sales transaction, pricing of the vehicles, and advertising. At times when reviewing the sales contract, we have to dig hard to figure out how the sales price was derived. This can be particularly irritating when an advertised price is involved, when some rebates apply, and others do not. Regardless, there should be a logical flow to the numbers so the customer understands the transaction. Since everything is computer-generated the process should be simple, but it can be as sloppy as the old paperwork. Therefore, I thought this You Auto Know® is an appropriate reminder.
As you are aware, I constantly stress the point in You Auto Know® that properly completed paperwork is very important. Again, the one thing that upsets us the most when we are reviewing paperwork, whether a sales order or repair order, is discovering incomplete documentation. Remember the first and best line of defense in any consumer conflict is the completed paperwork. If your service writers and/or sales personnel properly fill out each and every document that needs to be executed by the consumer, then the dealership is in a better legal position for any claims asserted by a consumer. Further, this will help overcome the basic underlying premises of the Consumer Sales Practices Act, O.R.C. §1345 et seq. which generally states that any conversations or activities prior to, during or after the transaction are actionable and can be utilized to determine the basis of a transaction. This goes beyond basic contract law, which states the jury or the judge must only look at “the four corners of the contract.”
Further, as you are aware, the Consumer Sales Practices Act Administrative Rules, specifically 109:4-3-10, Sale of Motor Vehicles, specifically states that any and all agreements, including oral promises must be put in writing. Otherwise, if there is a problem, the consumer can utilize those oral statements in an attempt to rescind the agreement.
Naturally, this applies to the service department where, Administrative Rule 109:4-3-05, Repairs or Services, states that the consumer is entitled to a written or oral estimate relative to the repairs being made and that the work performed on the subject automobile must be properly recorded on the repair order. We have been involved in matters where the customer only provided authority for service repairs in the amount of $1,800 but was billed $4,150 without prior approval.
The most important point that sales personnel and service people fail to realize is once a sales order and/or repair order is executed, it becomes a legal, binding contract enforceable by either the dealership or the consumer. Salespeople have a tendency to view a paper sales offer as nothing more than a piece of scrap paper since they write and re-write offers. However, they must be aware that once the document is approved by the sales manager and memorialized by the F&I manager for execution it becomes a legal, binding contract. Further, the backup documentation including but not limited to applicable rebates and the advertised price must all be correct to support the sales price.
The disclosures printed on Buyer’s Orders are for specific purposes. The majority of the purposes are to comply with various Ohio and Federal laws. Prior You Auto Know’s® have discussed odometer disclosures pursuant to O.R.C. §4517.26. This law specifically states that the mileage appearing on the vehicle at the time of delivery must be disclosed and whether the mileage is accurate or inaccurate. Consumer lawsuits have been filed claiming that the appropriate box regarding mileage accuracy was not marked or that the disclosure was not on the Buyer’s Order. This can lead to a claim for rescission of the transaction. Further, dealerships either fail to display the FTC Buyer’s Guide on used cars and/or fail to have the consumer execute the Buyer’s Guide pursuant to CFR §455. It must be executed at the required signature line on the document. Although it may be a technical violation, improperly signing the document can be cause for rescission of the agreement.
It is absolutely imperative that dealerships review the paperwork prior to a consumer executing the documentation and taking delivery of the vehicle. We have heard all the excuses for a sales team failing to do their jobs.
We have seen more lawsuits involving technical violations of laws, not where the dealership actually did something horrendous. However, the technical violations permit a lawsuit to be filed. It must be noted that in the majority of Ohio and Federal laws, the consumer can request rescission if the laws are not properly followed. YOU MUST IMPRESS UPON YOUR SALES PERSONNEL AND MANAGERS THAT THE PAPERWORK HAS TO BE PROPERLY FILLED OUT AND EXECUTED. Further, keep copies of all the sales worksheets, offers and counteroffers. In this way, you will be able to establish the sales/negotiating history of the transaction, and the fact that the consumer understood the transaction.
Recently, a customer executed a Buyer’s Order and wrote “under duress” underneath his name. The finance company rejected the deal. Again, make sure you review all documents BEFORE the customer leaves and if there are items added to the contracts by the customer, address the problem/issue immediately. The bottom line is, don’t complain about being named as a defendant in a lawsuit, if your sales personnel and managers did not perform their jobs properly.
Today’s consumer lawsuits are more sophisticated than in past years and many of them are now attempting to turn the alleged violation into a class action lawsuit.
Robert A. Poklar – 216.687.3243 – rpoklar@westonhurd.com
Set yourself up for a positive bargaining experience by understanding the negotiations landscape as we continue to navigate the post-pandemic era.
“While some aspects of bargaining remain constant, 2023 certainly has some unique challenges in store,” according to the authors – Weston Hurd partners Megan E. Greulich and Eric J. Johnson, “From COVID-19 exhaustion to staffing shortages and bolder union strategies, it’s more important than ever to anticipate the challenges you may face at the bargaining table and plan accordingly to set the stage for a positive bargaining experience and increased likelihood of beneficial language to set up your district for success in the future.”
The entire article can be found by clicking here: Post-Pandemic Negotiations
As springtime approaches and the growing season kicks off, conducting a bit of housekeeping now can be indispensable in protecting your business down the road. Factors to consider include:
“The perishable agricultural commodities listed on this invoice are sold subject to the statutory trust authorized by section 5(c) of the Perishable Agricultural Commodities Act, 1930 (7 U.S.C. 499e(c)). The seller of these commodities retains a trust claim over these commodities, all inventories of food or other products derived from these commodities, and any receivables or proceeds from the sale of these commodities until full payment is received.”
When reviewing your invoices, ensure that you are taking advantage of additional terms for attorney fees and interest at 18% per annum. These additional terms have been embraced as costs owed in connection with a PACA trust claim and are regularly awarded in litigation. Middle Mountain Land & Produce, Inc. Sound Commodities, Inc., 307 F.3d 1220 (9th Cir. 2002). Take a peek at your payment terms as well and confirm that they are within the allowable range under PACA. Under the USDA rules for PACA, prompt payment is ten days after the buyer’s receipt of the produce and cannot exceed 30 days.
It is important that your paperwork is in order to safeguard your rights under PACA to ensure that you can recover in the event litigation is necessary or if the buyer files for bankruptcy.
This article appears in the March 2023 issue of the Ohio Produce Growers & Marketers Association newsletter.
Weston Hurd’s 2023 – Desktop Legal Primer for Ohio Claims serves as a comprehensive go-to-guide and useful reference tool. Researched and written by Weston Hurd attorneys, the Primer contains Ohio statutes, case citations, and covers topics involving:
