Law FAQ: I bought a car yesterday but now think I made a bad decision. I have 3 days to get my money back, right?

Law FAQ: I bought a car yesterday but now think I made a bad decision. I have 3 days to get my money back, right?

No.  There is no “cooling off” period in Tennessee that gives you the right to back out of a car purchase simply because you’ve had a change of heart.

Of course, if the Dealer offers a return policy – i.e. a money-back guarantee or a “return with no questions asked” policy – then you may indeed have a contractual right to return the vehicle, but that would have nothing to do with a so-called “cooling off” law.  You should remember to get a written copy of the policy when you purchase the vehicle and then read it very carefully.

If you’re talking about a defective vehicle, or a vehicle that doesn’t live up to its warranty, then you’re not necessarily dealing with a “cooling off” issue, but rather a warranty claim.  Speak to the Dealer to see if your complaint can be resolved, or perhaps even the manufacturer if necessary.  If your new vehicle has had to have the same part repaired 3 times in the first year of ownership, you may even have a lemon law claim.  For more information concerning Tennessee’s Lemon Law, please refer to my blog post last week.  Be diligent in your efforts to correct the problem and speak with an attorney so that you don’t miss any deadlines to pursue your claim.

While there is a Tennessee “cooling-off” law and a federal “cooling-off” law, they only apply to home solicitations.  In addition, both “cooling-off” laws specifically exclude automobiles.

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Law FAQ: Is my car a lemon?

Is my car a lemon?

Tennessee’s Lemon Law is intended to protect new car purchasers from the occasional vehicle that, for some reason or another, has problems that are beyond repair.

The core of the Lemon Law is at T.C.A. § 55-24-102, which states as follows:

If a new motor vehicle does not conform to all applicable express warranties and the consumer reports the nonconformity, defect or condition to the manufacturer, its agent or its authorized dealer during the term of protection, the manufacturer, its agent or its authorized dealer shall correct the nonconformity, defect or condition at no charge to the consumer, notwithstanding the fact that the repairs are made after the expiration of the term. Any corrections or attempted corrections undertaken by an authorized dealer under this section shall be treated as warranty work and billed by the dealer to the manufacturer in the same manner as other work under warranty is billed.

[Note: many internet sites wrongly reference the old law: T.C.A. § 55-24-201 et seq.

Please be careful when following this statute, as it contains many specific provisions that could make or break your case, such as which particular consumers or vehicles are protected by the Lemon Law.  Indeed, I would recommend that you consult with an attorney before proceeding with a Lemon Law claim.

Here are some of the important highlights from Tennessee’s Lemon Law:

• Basically, you MAY have a Lemon Law claim if you purchase a new motor vehicle or motorcycle that is ‘substantially impaired.’
• A ‘substantially impaired’ vehicle is one with problem(s) so pervasive that it is unreliable or unsafe for normal operation, or that reduce its resale market value below the average resale value for comparable vehicles.
• A vehicle is presumed to be ‘substantially impaired’ if either:
  • The vehicle is out of service by reason of repair for a cumulative total of 30 or more calendar days during the term of protection; OR
  • The manufacturer, its agent, or its authorized dealer has made 3 or more repair attempts for the same nonconformity and the nonconformity remains.
• In order to claim that a vehicle is substantially impaired, the owner must notify the manufacturer of the need to correct or repair the problem via certified mail.  After the notice has been sent, the manufacturer has 10 days to correct or repair the nonconformity.
  • If the manufacturer has an approved informal dispute settlement procedure, the vehicle owner MUST participate in the procedure.  Yet, the decision reached is nonbinding, therefore if the owner is not happy with the result, he/she may simply file a lawsuit under Tennessee’s Lemon Law.
  • If the manufacturer does not have an approved informal dispute settlement procedure and it does not correct or repair the nonconformity within 10 days, the vehicle owner may file a lawsuit asserting the Lemon Law within the applicable time period.
• A consumer must file a lawsuit asserting the Lemon Law within 6 months of the expiration of the express warranty term or 1 year following the date of the vehicle’s original deliver to a consumer, whichever is later.  The limitations period does not include the time during which a consumer participates in a manufacturer’s informal dispute resolution procedure.
• In the lawsuit, a consumer may request either a replacement vehicle or reimbursement of the purchase price.
• Lastly, even if a consumer has an otherwise valid claim, a manufacturer can defeat the claim if it proves either of the following:
  • That the nonconformity does not ‘substantially impair’ the vehicle; or
  • That the nonconformity was caused by a consumer’s abuse, neglect, or unauthorized modification or alteration of the vehicle.

If you think that you may have a Lemon Law claim, feel free to contact our office.

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Law Talk: Halloween – Your Legal Duty of Reasonable Care

Halloween – Your Legal Duty of Reasonable Care

Halloween is always a great time of year – costumes, hayrides, haunted houses, and candy!  However, homeowners should be mindful of the responsibility they owe visitors to their property.

Later this evening, many of you will have a variety of ghosts, princesses, vampires, and angry birds trick-or-treating at your doorstep.  Halloween night poses a great many risks for homeowners because you are essentially opening your home to the public for a unique once-a-year open house event.  As you may or may not know, you owe what lawyers call a ‘duty of reasonable care’ to each of those children that come onto your property.  This leaves you vulnerable to potential liability.

Here are some commonsense tips that you can follow to better protect the trick-or-treaters on your property this year:

1. Keep Your Property Well-Lit – Be mindful that trick-or-treaters will be cutting through all parts of your property to find your front door, so try to make sure that your front porch is adequately lit for them to easily find their destination.  By keeping the path to your home and front step well-lit, you can prevent potential slip-and-falls by trick-or-treaters wondering into other parts of your yard.  Also, those who are up to no good on Halloween are typically less likely to bother well-lit property.
2. Keep Property Unobstructed – In addition to keeping your property well-lit, it is always a good idea to keep your property unobstructed while trick-or-treaters seek the most efficient pathways between houses handing out candy.  This includes such ideas as picking up yard debris, filling gopher holes, winding up hoses, and picking up toys left in the yard.
3. Restrain Pets – Another overlooked Halloween safety tip is to be sure to keep your pets away from the front porch, where they might get excited and jump on or bite trick-or-treaters.
4. Pumpkin Safety – The traditional Jack-O-Lantern presents many potential hazards.  For example, it is often very easy for a guest or child to kick the pumpkin and candle over if they’re not looking where they’re going.  This type of accident could cause a slip-and-fall or present a fire hazard.  One way that you could protect the trick-or-treaters, your family, and your home is to consider purchasing a battery-powered light for your pumpkin instead of a traditional candle.
5. Use Your Home Security System – Halloween presents a prime opportunity for vandals and burglars to damage your property.  Thus, it is recommended that you make sure that you have a reliable home security system that can deter others from causing harm to your home.
6. Check Homeowners Insurance – Lastly, it would not hurt to contact your home insurance agent to request additional homeowners coverage on the one night a year where a variety of people will be visiting your property.

While Halloween is a fun holiday, homeowners should make sure to eliminate any potential risks for a child injury.  Be sure to protect all your visitors by keeping your property clean and safe.

Most of all, have a fun and safe Halloween!

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Law FAQ: Am I liable for a car accident caused by my child or spouse?

Am I liable for a Car Accident Caused by my Child or Spouse?

It depends!  Tennessee follows the family purpose doctrine, which can result in a family member, such as a parent or spouse, being held liable for damages caused by another family member’s negligent operation of a vehicle if certain factors are present.  To be liable, a family member must satisfy the following three factors: 1) he/she must be considered the “head of household”; 2) the vehicle must be maintained for comfort or pleasure of the family; & 3) the vehicle must have been used with his/her express or implied consent.  Yet, while these factors might seem simple at first glance, they have been interpreted more broadly than you might think.

First, the “head of household” can be more than one parent, including a parent that does not even live at the same address as the family member who was driving the vehicle at the time of the accident.  This broad definition means that parents with kids in college, and even divorced parents without primary custody of their child can still be considered “head of household” for liability purposes.  Typically, though, the court will consider whether the owner of the vehicle and the driver share a family relationship and whether the owner has some duty to support the driver.

One of the arguments often made by parents is that the vehicle was provided solely for their child and not the comfort or pleasure of the family.  Indeed, this argument was made in a recent case decided by the Tennessee Supreme Court.  In Arlene R. Starr v. Paul B. Hill, Sr., et al., the Court held in part that “[e]ven though Father may have subjectively intended to give the vehicle just to Son for Son’s sole use, in doing so, he provided a benefit to the family unit by providing Son with a source of transportation.”  Given this interpretation, it will be difficult for any parent to argue that a vehicle used by only one family member is not maintained for the comfort or pleasure of the family.

Lastly, the vehicle must be used with the express or implied consent of the “head of household.”  This means that the “head of household” must have some level of control over the use of the vehicle, such as the ability to provide conditions upon when, where, and how the vehicle may be used and/or the ability to forbid the vehicle’s use.  This factor is especially important for non-custodial divorced parents because the custodial parent may attempt to override limitations on the vehicle’s use.  Ironically, this might relieve the non-custodial parent of liability under the family purpose doctrine.

Parents and spouses, whether married or divorced, should consider the family purpose doctrine when purchasing insurance to make sure all persons and vehicles are properly covered.  It is also important to remember that the family purpose doctrine can mean that the parents of a child who causes an accident can be held liable under Tennessee law.

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#BeyondaReasonableDoubt

Beyond a Reasonable Doubt

If you are like me, your Twitter Feed and Facebook page have been littered lately with well intentioned people reciting snippets of news stories decrying the Troy Davis execution based on the idea of #Toomuchdoubt.  I would encourage you to read the Court’s Order for yourself.  You may still oppose the death penalty, but you will likely be less worried that Georgia executed an innocent man.

Law FAQ: What is an estimated tax payment, and who is required to make them?

Law FAQ: What is an estimated tax payment, and who is required to make them?

What is an estimated tax payment?

Estimated tax payment is the method used to pay tax on income that is not subject to withholding.  Functionally-speaking, you can view estimated tax payments as a substitute for employer withholding for any income you might receive for which there is no “employer” who is withholding taxes out of your paycheck.  For example, if you are self-employed, or if you earn meaningful income from side jobs for which there is no employer who is withholding taxes, then you would generally be required to make quarterly estimated tax payments as to that income.

Who is required to make an estimated tax payment?

From the IRS website: “If you [file your tax return] as a sole proprietor, partner, S corporation shareholder, and/or a self-employed individual, you generally have to make estimated tax payments if you expect to owe tax of $1,000 or more when you file your return.”

If you are a salaried employee who has filled out your W-4 form correctly, and you are having the appropriate amount withheld from your check each pay period, then you are generally not required to make estimated tax payments.  However, if you have a side job where you are essentially self-employed (for example: doing odd jobs, cutting grass on weekends, etc.) and you receive a meaningful amount of income for which there is no employer withholding, then you may be required to make quarterly estimated payments, or to adjust your employer withholding to make up the extra difference.  You can use the worksheet on IRS Form 1040ES to determine whether you might owe estimated tax payments.

When are estimated tax payments due?

There are four payment periods, and each period has a different due date depending on the year.  The remaining due dates for 2011 taxes are Thursday, September 15, 2011, and Tuesday, January 17, 2012.  If you do not pay enough tax by the due date of each of the payment periods, you may be charged a penalty even if you are due a refund when you file your income tax return.  In other words, you can’t skip or underpay on one of the payment dates.

What happens if you are required to pay estimated taxes but fail to do so?

From the IRS website: “If you did not pay enough tax throughout the year, either through withholding or by making estimated tax payments, you may have to pay a penalty for underpayment of estimated tax. Generally, most taxpayers will avoid this penalty if they owe less than $1,000 in tax after subtracting their withholdings and credits, or if they paid at least 90% of the tax for the current year, or 100% of the tax shown on the return for the prior year, whichever is smaller.”

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Chris Patterson Featured in the Memphis Daily News

Featured in the Memphis Daily News

Chris Patterson is profiled in today’s edition of the Memphis Daily News:  Patterson Strikes Right Balance Between Legal Duties

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New Company T-Shirts!

Our new company t-shirts are in!  We have gray and black designs in both long and short sleeve, as modeled below by our new associate, Chase Fisher.

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Advising Clients about Facebook and Twitter

The Tennessee Bar Journal has an insightful article this month about new challenges for lawyers arising out of technology, and the potential collateral damage to their clients’ cases as result of social media like Facebook and Twitter.  Indeed, litigation has always meant that your clients were going to be under scrutiny from their adversaries; however, the ease and widespread use of Facebook and Twitter has vastly changed the rules of the game.

These days, social media is a virtually free and easy database for investigators and adversaries seeking information about clients.  And the informality and ease with which people interact and share information on Facebook and Twitter can often provide fodder for someone looking for ammunition — possibly even to mislead/distort.

Technology is a challenge, and lawyers must be technically savvy enough to be familiar with how social media works so that they discuss these issue intelligently with their clients in order to provide sound advice.