Remember the Smelly Car episode from Seinfeld?  It went like this… The strong body odor of a valet is left in Jerry’s BMW 5 Series.  Jerry is forced to try to sell the car, because the odor has taken a life of its own and permeated everything.  When the car can’t be sold, Jerry winds up leaving it and the keys out on the street.

Well, art sometimes imitates life, or vise-a-versa, as illustrated by a recent Massachusetts lemon law decision coming out of the Appeals Court . The plaintiff bought a Jeep in August 2003.  Thereafter, at least five times, she reported a foul odor like rotten eggs in the car each time she started it up. Four times, she reported a rattle noise in the car of undetected origin.  Each time, the car dealership repair center examined the car but could not detect either problem.  

The Plaintiff sued for breach of warranties, breach of contract, and violations of G.L. c. 93A, the Massachusetts automobile lemon law and the Federal Magnuson-Moss Warranty Act.  The plaintiff also made a claim seeking to revoke acceptance of vehicle under the Uniform Commercial Code.  The Plaintiff lost, both at the trial court level and on appeal.  Both courts ruled that none of her claims could be sustained because the defects of which she complained were not ‘substantial’ - thus no breach of Mass Lemon Law or Chrysler’s warranty occurred.  The court bought the manufacturer’s argument that the despite the ‘alleged’ foul odor and rattle noise in a vehicle, the vehicle provided safe and reliable transportation.

I can see both sides of the argument. If a dealer cannot duplicate a problem, it is very difficult to blame him for failing to fix it. Plus smell and noise issues don’t really affect the drivability or safety of a vehicle. On the other hand, I’m concerned that decisions like this reward dealers for shirking responsibility for fixing intractable or intermittent problems of the type the plaintiff complained of.   As a result my advice is this: if something is wrong with your car and the dealer doesn’t seem to find the problem, make sure you have friends or family (Elaine, Kramer??) witness the problem.

Of course, if it gets unbearable, you can always just leave the car on the street….