01-0911 Berends v. Mack Truck, Inc.

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“We agree with the circuit court that the phrase, ‘At the direction of a consumer’ is unambiguous. It requires the consumer to make a choice and communicate that choice to the manufacturer. Because Berends failed to specify whether he wanted a new vehicle or a refund of the purchase price, his notice was defective. …

“The manufacturer is given no choice under the statute, and Berends cannot interpret the statute in such a way as to give the manufacturer that choice. As the circuit court observed, the Lemon Law gives the consumer a powerful tool, but it also imposes on the consumer the responsibility of electing a specific remedy. If Berends believes the consumer should be able to pass that choice onto the manufacturer, his remedy lies with the legislature, not the courts.”

And even though plaintiff’s notice conformed to a form letter distributed by the Department of Transportation to consumers, that form is not controlling because it still fails to specify the remedy the consumer is electing and even proposes a third remedy – repair of the vehicle within seven business days.

“Although we sympathize with any consumer who unknowingly used a DOT form with language contrary to the statutory requirements, that is not a basis to conclude that proper notice has been provided.” (The DOT form has since been amended).

Judgment affirmed.

Recommended for publication in the official reports.

Dist III, Eau Claire County, Stark, J., Cane, C.J.

Attorneys:

For Appellant: Michael J. Brose, New Richmond; Brian H. Sande, New Richmond

For Respondent: Jeffrey S. Fertl, Milwaukee