If a consumer must retain an attorney to go to court or through a state arbitration proceeding with a manufacturer, the lemon law should provide for the award of attorney fees to make the consumer. Otherwise, the cost of the attorney will make it economically impractical for the consumer to exercise their lemon law rights in court or arbitration. Prior to lemon laws, the retort of the manufacturer to the lemon owner was “Sue us!” knowing that it would cost more to sue than to trade the lemon in. Unless the lemon law provides for an award of attorney fees, manufacturers will continue to force consumers to file a lawsuit, knowing most consumers will give up and go away.
To protect consumers and make them whole, the majority of states either mandate attorney fees in court proceedings or allow for discretionary attorney fees in arbitration and/or court proceedings. On the other hand, Colorado provides for mandatory attorney fees to the prevailing party, which ensures no consumer will file a lemon lawsuit for risk of having to pay for an expensive corporate law firm. Colorado and New Mexico have similar bad provisions by providing that auto companies can receive discretionary fees and mandatory fees for frivolous actions respectively. The risk of having to pay auto companies’ attorney fees chills the right to bring a lemon law suit. Washington protects consumers who invoke their lemon law rights by providing for attorney fees in arbitration if the manufacturer is represented by counsel, and if the consumer prevails in an appeal from arbitration:
Washington Revised Code Annotated
19.118.090 Request for arbitration – Eligibility – Manufacturer’s response – Defenses – Remedies – Acceptance or appeal.
(6)(b) If the board awards remedies under this chapter after a finding is made pursuant to RCW 19.118.041 that one or more nonconformities have been subject to a reasonable number of attempts, the board shall award reasonable costs and attorneys’ fees incurred by the consumer where the manufacturer has been directly represented by counsel: (i) In dealings with the consumer in response to a request to repurchase or replace under RCW 19.118.041; (ii) in settlement negotiations; (iii) in preparation of the manufacturer’s statement; or (iv) at an arbitration hearing or other arbitration proceeding. In the case of an arbitration involving a motor home, the board may allocate liability among the motor home manufacturers.
19.118.100 Trial de novo – Posting security – Recovery
(1) The consumer or the manufacturer may request a trial de novo of the arbitration decision, including a rejection, in superior court.
(2) If the manufacturer appeals, the court may require the manufacturer to post security for the consumer’s financial loss due to the passage of time for review.
(3) If the consumer prevails, recovery shall include the monetary value of the award, attorneys’ fees and costs incurred in the superior court action, and, if the board awarded the consumer replacement or repurchase of the vehicle and the manufacturer did not comply, continuing damages in the amount of twenty-five dollars per day for all days beyond the forty calendar day period following the manufacturer’s receipt of the consumer’s acceptance of the board’s decision in which the manufacturer did not provide the consumer with the free use of a comparable loaner replacement motor vehicle. If it is determined by the court that the party that appealed acted without good cause in bringing the appeal or brought the appeal solely for the purpose of harassment, the court may triple, but at least shall double, the amount of the total award.