My “Clean Diesel” is apparently Dirty as Hell. What should I do? – Alabama Automobile Fraud Attorney Judson E. Crump

Are you one of the approximately 482,000 VW Diesel owners in the USA with a car that was rigged to cheat its way through emissions tests?  If so, here are some things to consider before you start freaking out:

1. You can still drive the car.The “defeat device” that lurks in your car’s computer is not dangerous.  At least not directly.  The VW diesel you drive emits about 40 times the maximum allowed level of Nitrogen Oxides.  NOx, as they call it, is a smog creating pollutant that is bad for your lungs.  So while driving a 2012 VW Jetta DTI is bad for all the other humans in your town, it won’t explode or suddenly fall apart or anything like that.
2. Your car may be illegal to drive.The whole problem with the scandal is that VW was rigging its engine computers to detect when the car was being driven in test conditions and suddenly change the engine’s performance so as to pump out low levels of NOx.  But when it detects normal road conditions, it switches back to high-performance, high-pollution mode and suddenly quits giving a crap about the environment.  And pesky government regulations.

   So your car is likely to fail any emissions test.  If you live in Alabama, you’re lucky because your high-polluting car fits right in with the attitude of our politicians, who probably think that VW’s deception is somehow actually a good thing.  But even if you don’t live in a place with emissions testing, you may eventually want to sell your car to someone who does.  And if you ever trade the thing in, the dealers are going to pay you a lot less for a car that they can’t sell in Arizona or Florida or some other such environmentally friendly place.  So even if you’re 100% okay with trashing the air that your children breathe, you should at least care that you’re going to get a few thousand bucks less for your trade-in than you should have.

3. You should hire a lawyer.  A real lawyer who will sit down and talk to you.The normal response to reports of massive corporate wrongdoing or dangerous products is to read the news, get horrified, and wait for the class action lawyers to send you a letter asking you to join their plan to Nail Those Bastards to the Wall, pay themselves $52 million, and send you a check for $199.16.  This is fine when you’re getting compensated for a few under-filled cans of tuna.  When your vehicle is technically illegal to drive in the civilized world, however, you may want someone who will actually pay attention to your case.

   Of course it is impossible to calculate the dollar impact of VW’s deception on any particular car buyer, but it is possible that the financial loss alone could be several thousand dollars.  Joining a class action settlement may not be your best bet.  You can’t be forced to participate in a class action if you don’t want to.  You should talk to someone who can help you figure out the way to go.

4. The dozens of class action lawsuits that have been filed are legally deficient in some ways.Why?  Because they’re suing for fraud, concealment, and breach of contract.  They’re missing a very important and potentially beneficial claim: breach of warranty.  Legally speaking, breach of warranty is probably the most appropriate cause of action here.  Contrary to popular opinion, you can’t sue somebody just because you’ve caught them lying.  Fraud requires proof of something called reliance.  It isn’t enough that a false statement or concealment caused you harm somehow.  That false statement must have led you to act to your detriment.  And it must have been reasonable.  Reliance is the hardest thing to prove in a class action, because they have to show that all 482,000 VW DTI buyers out there relied on the “clean diesel” advertisements in purchasing the car.  How can they prove the individual purchasing motivations for thousands of different people, each with their own priorities, preferences, and resources?

   So why are such expert lawyers suing for fraud instead of breach of warranty?  Because warranty requires that you notify the seller or manufacturer of the breach and give them a reasonable opportunity to cure it.  And giving VW notice of the problem and a chance to cure it can take weeks.  If you wait weeks to file your lawsuit, you can’t be the first in line to get your class certified and be the guy who gets to send out a hundred thousand checks for $20 each.

   An individual, however, can treat this case like a normal breach of warranty.  You can write a letter to VW at the address in the back of your owner’s manual.  You can offer them 30 days to fix the problem.  And when they fail to do so, you can take legal action.

   There’s a big advantage to breach of warranty: attorneys’ fees.  The Magnuson-Moss Warranty Act provides that if you win a breach of warranty suit after following the manufacturer’s protocol for making a warranty claim, they can be required to pay your lawyer’s fees.  This means that your lawyer doesn’t have to get a cut of your own recovery – you keep all your money, he keeps his.  Way better than getting $4,000 as compensation for $7,000 of loss.

5. Federal Law May Require VW To Repair Your CarSince 1995, all new cars in the USA have a federally-mandated emissions warranty.  Basically, all manufacturers must offer extended 8-year, 80,000 mile warranty coverage for the important emissions control parts and 2 year, 24,000 mile coverage for minor emissions-related parts.

   If your car is less than 2 years old and has less than 24,000 miles on it,  the VW Manufacturer’s warranty should obligate them to fix this problem.  To make a claim under the warranty, you should write them a letter and follow the instructions in the back of the manual.

Bottom Line: VW is going to have to pay to fix this.  But you shouldn’t just sit around and wait for the class action sharks to let you in on your small slice of the pie.  Contact them immediately and demand warranty-covered repairs.  If you live in Alabama or bought a VW Diesel from 2009, 2010, 2011, 2012, 2013, 2014, or 2015 in Alabama, write us or give us a call at 251.272.9148.