car trouble!

[Doc]

But seriously, do I spend another $950 to diagnose the problem wasn't identified or do I cut my losses, or mitigate them? I know if I spend the money that Nissan is going to come back with that part wasn't bad because they in effect told me that. ONLY the sprockets and timing chain were replaced so that's all they cover, "part failure" so to speak. If is the cam shafts, not covered because that was fine when it left the shop, or the bearings, etc. Nissan was more than happy to risk my money to determine but I'm not. Once I hit $4,500 and my car does not start, that's enough

[Darrell KSR]

Seriously, there is little in life that is more frustrating than an improperly diagnosed car issue.

[Doc]

I'm not so miffed about the diagnosis being wrong but the "its not our problem" attitude. Basically they told shop two to fix it and if it was a failure of a part they put in then Nissan would pay, if not then I would pay.

As a business owner, I would have paid to have the car towed back to Stuart and then done the DX at no charge. Of course they offered to do that but I had to pay for the tow. If I pay the tow, it sure as **** isn't going to their place. It will go to my regular mechanic who will pull and replace the engine, then he would do the DX and I can promise he would find the problem

[MickintheHam]

Matches my experiences with Nissan and their dealers over the last 20 years. I will never own another one of their products. I love the Z. And the 6 speed Maxima was one of the most fun cars ever. But, the dealers and the company suck! I once had to have the maxi towed from the dealer to my transmission guy. I asked the tow truck driver if he ever towed a car from the dealer before. His response? "More than you would ever imagine."

[KeithKSR]

This is a common issue with these Nissans. I googled it and found plenty of issues like this. Looks like some kind of computer/wiring issue is the root cause. One guy had the FTS (fail to start), Nissan told him it was internal. He towed it home as he couldn't afford the war price they wanted to fix it. A buddy of his unplugged the O2 sensor and had it running in a couple of minutes. I haven't seen a cure posted, just lots of parts being thrown at the issue. Dealers want new engines installed or timing kits put in, the guys who repair their own toss O2 sensors at it.

[Doc]

I dumped it. Traded her in on a newer model with fewer miles. Now I have to decide what to do with the car! Bada bing. That joke never gets old

Seriously, we did trade the.car in. Dealer had a 2016 white 370Z with only 12,000 miles. Gave me 11K for the non running one. Would have cost me 600 to tow it home and no way am I getting that trade in value on an engine less car. Cut my losses. I've already disputed the charges on my credit card and it that fails (it will) I'll go to small claims

[KeithKSR]

I dumped it. Traded her in on a newer model with fewer miles. Now I have to decide what to do with the car! Bada bing. That joke never gets old

Seriously, we did trade the.car in. Dealer had a 2016 white 370Z with only 12,000 miles. Gave me 11K for the non running one. Would have cost me 600 to tow it home and no way am I getting that trade in value on an engine less car. Cut my losses. I've already disputed the charges on my credit card and it that fails (it will) I'll go to small claims

Given the cost of potentially having to be out of pocket for more repairs cutting the losses may be the best move.

[Doc]

Given the cost of potentially having to be out of pocket for more repairs cutting the losses may be the best move.

Yes. Cut my losses. Sometimes that is the best option

[Darrell KSR]

That made the sugar Mrs. Doc put into the gas tank all worth it.

[Doc]

That made the sugar Mrs. Doc put into the gas tank all worth it.

I'll put it this way.....she is NOT happy with the new car. The ad had it as a premiere packages leather seats, upgraded stereo, back up camera, etc. When we got there it was a base model. None of those options so I knocked $2k off the price but still not what she wants. The trade in had all that except the camera. We took the car but they will keep an eye out for exactly what she wants which is a manual transmission premium package. If one comes thru they will call and she will trade the white one in faster than she can drive it

[Darrell KSR]

Yikes. Well, hope it is found soon.

[Doc]

UPDATE:

So I want an honest legal opinion here.

You can reread the thread but a quick synopsis. Car had no oil, broke down. Towed to my mechanic who was unable to fix due to the diagnostic codes being proprietary for Nissan. Towed to local Nissan. Diagnosed car with cam shaft spocket failure and timing chain. Repair cost $3,700 and included a 12 month warranty. I authorized ALL REPAIRS THEY RECOMMENDED. 10 days after getting the car back it broke down with the same issue. Towed to Nissan in Orlando (150 miles away from 1st repair Nissan since the car broke down in Orlando) at local Nissans instructions. They dx as cam shaft sensor failure. This was not part of the repair so not warrantied although the sensor reads the sprocket so it could be the sprocket which would be warrantied. That said I agreed to that repair and paid to replace the sensor ($700). Done and car did not work. However when they diagnosed the car they noted "sludge in the oil". My understanding is that the initial reason the sprocket failed was because there was sludge in the oil (or what was left of the oil) caked the sprocket and caused it to fail. To have the car further diagnosed involved me spending another $1,000 which MAY have been covered depending on what they found...ie if sprocket or timing chain failed it covered, anything else then I get the bill. I was also offered the option of having the car towed to original Nissan at my cost ($550). I countered with an offer to have them tow it (it cost them nearly nothing to have it hauled from Orlando to Stuart on one of those carriers) but they declined. I elected to trade the car in rather than risk another grand.

I disputed the charges twice with my credit card and it was denied. I expected that since the repair shop has to authorize it--they didn't because they claimed I didn't contact them the first time(not true as I have the e-mails) and the second time because I didn't return the part. I have since filed a small claims suit for $3700 (original repair) + $700 (second repair) + $400 (court costs) = $4,800.

Since then the car had the engine torn down (by the Orlando dealership) and had the sprocket warrantied. The original repairing Nissan is using this to claim I should have risked it because it was a warranty issue. I just got off the phone with the Orlando shop and yes, they did get reimbursed for a cam shaft sprocket failure however talking with the technician who remembers the car well, he believes it was due to the sludge. I'm getting additional paperwork from them.

So I have been told by the local dealership they will contact me prior to the court date, I assume about any offer they might make.

My case is NOT based on the part failing or the not covering the warranty. My case is based on they did not adequately or fully repair my car. IMO they should have flushed the oil system. They knew there was sludge in the oil system and that wasn't done. On no paperwork from the original Nissan is there any mention of flushing the oil system. I would assume this would be standard part of a repair if the issue was oil sludge causing a part to fail.

Am I wasting my time by taking this to pre-trial mediation.

One other thing, I've not as of yet made any internet reviews. I did this so as not to poison the water. Rest assured if I don't get satisfaction, I will hammer them and do so hard. Stuart isn't a big town and many people know me. I'd do it and sign my name to it so it would be "anonymous disgruntled internet complainer"



As an aside--when I traded the car in, the value of the car in a nonworking state was probably around 7K. I was able to get 11K for it so I'm really not that bad off. However working I likely would have gotten a few thousand more on trade, or if we elected to repair it, my wife would not have settled for a car she hates (same car just 6 years newer and 90,000 less miles but no options and its white rather then red).

[KeithKSR]

If they detected sludge in the oil it would have been prudent to flush the engine and change the oil.

[Darrell KSR]

I'll give you some thoughts when I am front of a computer, Doc. I'm not going to get home tonight until after midnight, and headed out of town tomorrow too, but either tomorrow morning or tomorrow night late.

[MickintheHam]

I have been involved in a ton of lawsuit settlements involving our company. I'm not sure I understand when you say "by taking it to mediation". Are you taking it to mediation, is the defendent taking it or is the judge nudging or ordering you?

I haven't been involved in a suit that didn't go to mediation of some sort in 10 years. If you haven't tried to mediate the differences, most judges here in Alabama would at least encourage it and likely look with disfavor on any counsellor who didn't at least try. So, I would think you would go to mediation one way or another. If you are serious about the suit, you should do it.

Late last year we settled a $750k suit for $250k in mediation before the trial. The plaintiff attorney settled because he had a client who was an extremely bad witness. The plaintiff in the end probably got about $70k. Other than the time we demonstrated a client was lying on tape, iTis the only time we settled a suit in mediation that didn't look something like 50/50.

You are likely not wasting your time, but be prepared to take some unexpected hard body shots.

[Doc]

Here you file a small claims suit but before it goes to trial there is a court ordered mediation. You and the defendant, without witnesses, go in front of a mediator and attempt to work a settlement. Its required prior to the court case case. If nothing can be agreed on it goes to small claims court. I had a small claims case about 10 years ago where an AC company put in an air handler incorrectly and it caused about $10,000 worth of damage. I took them to small claims and we settled in mediation for about half of that. I don't plan on taking 50% on this one.

Also, I did talk to my regular mechanic. He states absolutely that the oil system should have been flushed, and he will prepare a letter stating so. If the vehicle's oil system ran dry it is going to have all types of debris (metal shaving, sludge, etc) in the system, and they would need to have been removed. If it goes to court he will come as a witness.

[MickintheHam]

My guess is the car dealer will have a much different type of lawyer than the AC guy. You will need to make it woth your witness' effort to appear and that may be fodder for the defendent.

I wish you well. I just think it will be an uphill fight, even though right is on your side.

[Doc]

My witness is chomping at the bit. He is a client of mine, I've treated his dogs for better part of 20 years and he will call me regardless. In fact I just did him a huge favor last week and fixed his "baby mama's" cat with a dislocated hip for about 1/3 of what her regular vet quoted (I found some charitable contributions plus donated some of my services, etc... as she in need). He dispises the dealership. Told me not to repair the engine and that is should have been replaced from the get go. Quoted me $5K to replace it with a rebuilt one and said that was how it should have been fixed. He saw the car initially but could not fully diagnose without pulling the engine. Hoped the codes from Nissan would be an easy fix. I figured since Nissan built the engine, had the codes and gave me a warranty, plus in our conversations they "guaranteed me" it would be as good as new (yes, that was an oral guarantee and not worth anything), they knew what they were doing. They didn't. I'll be getting the paperwork from the teardown from Orlando Nissan (they have agreed to send that to me even though I had sold the vehicle and it was no longer my car) plus I have e-mail from them stating there was sludge in the oil.

[Darrell KSR]

Doc, I'm beat (got in about 4 this morning from a show choir competition, then headed to Nashville today, visited with daughter, turned around and just got back, another 400+ miles), but wanted to post a few thoughts. This will be mostly generic stuff, rather than super-specific (I am POSITIVE I missed things in skimming the thread).

First, as you know, mediation is an informal process. But you should go into it with the idea of being as prepared as you would be for trial. Use your best judgment on how much to reveal to the other side, and use the mediator as a tool in the process. You can reveal things to the mediator and tell him/her that they are not to disclose it to the other side, but use it for their benefit only. "Hey, I have a witness who is an expert in the field who is going to testify that they ruined the car when they did X rather than Y." Normally something like that wouldn't matter that much, because in most cases you have to reveal what your expert witness will testify, and/or produce a report prior to trial, but this is small claims court, and all rules are out the window when it comes to discovery and evidence (generally--your rules may vary from this--do not take this as specific legal advice to your state, of course.)

Speaking of rules of evidence, generally a "statement" written by your mechanic would not generally be admissible in court, as it would not constitute evidence, but would be hearsay--an out of court statement offered to prove the truth of the matter thereof. But in small claims court, a judge generally allows things like that. Having said that, your mechanic physically being there and testifying would go a long, long way toward better proving your case.

On your case--it boils down to this. You are alleging a breach of contract, as well as a tort. On the breach of contract, you paid them to repair your car. Your proof has to be that they failed to do so. The evidence of that could be witness testimony or something else, but your mechanic could be the best evidence. Your damages there are PROBABLY what you paid, regurgitating the consideration. Might/might not include consequential damages, which could include damaging the car further (I have no idea about specific car law, or Florida law there).

On your tort case--you are alleging that his actions caused damage to your car. Same evidentiary issues here--how do you prove it? I can't think of anything better than a mechanic who testifies well being there to tell the judge that "I inspected the car, and that it showed evidence of this type of condition, which is caused by this type of thing, and this is the kind of thing that an auto mechanic charged with the duty of repairing the car should have done. The previous auto mechanic failed to do this, and I know that because of X, Y and Z."

In a typical tort case, the measure of damages is the difference in what the property was worth prior to the tortious conduct, and what it was worth after the tortious conduct. If it was worth $15,000 before the damage, and only $10,000 after the damage, the tortious damages would be $5,000. I got lost in the numbers on the trade-ins, etc. mentioned above, but although trade-ins may be one indication of value, there are some issues with that, of course--how much of a trade-in are they giving because of the value of the car, versus how much of a trade-in are they giving because they would give a cash discount for the car being purchased anyway?

The burden is on you as the plaintiff to prove not only the case, but also the damages suffered. On my quick skim, I think you probably have some concrete numbers to produce. Again, in a normal case, you'd have to introduce specific evidence--a bill of sale where someone could attest to the authenticity (as opposed to you just creating a fake bill of sale), etc. In small claims court, judges typically accept things at pseudo-face value.

(Side note--I saw someone advertising "Novelty" diplomas and GEDs recently. Only $120 for that "Novelty." Ha ha, I'm sure that's worth a chuckle.)

Keep your presentation as clean as possible to the judge when it comes time. This is what my car was doing, this is what they (mis?)diagnosed, this is how they (mis)treated it. Here are my bills and invoices showing their diagnosis and treatment. I have a mechanic here that has been in the industry for ___ years, working on this specific kind of car for ___ years, and he inspected the car after their (mis)treatment. Mr. ________ is prepared to tell your Honor how the previous mechanic failed in their duties to exercise ordinary care in repairing the vehicle under these circumestances.

After Mr. _______ testifies, I have evidence showing what I paid for the service, which I am asking the Court to refund back to me. In addition, I have evidence showing that my car was worth $_______ before they damaged the car with their ill-fated repairs, and evidence showing that my car was only worth $_______ after they performed their repairs improperly, and/or failed to exercise ordinary care that a car mechanic should have exercised in those circumstances. I would like the Court to order them to pay me for the losses I have incurred as a direct result of their negligent care of the car, together with the costs of this action.

Something like that. I'm beat, so forgive me if I rambled on, and/or if I (likely) missed some very important point.

[Doc]

.

Thanks

I think the only issue is damages. Of course I paid for a repair and basically got nothing for it. I was fortunate that I was able to get WAY over value for the car on trade in however much of that was to offset the cost of the new car. The vehicle we ended up getting was advertised as a optioned out one (premium stereo, back up camera, upgraded interior, etc...) however when we got to the dealership it turns out it was a base model and had zero options. Rather than dropping the price of the car, they increased the trade in value. It made no difference to use as what came out of our pocket was less. They needed the sale price of the car to be a minimum but didn't care so much on the what they gave us for the trade in. All part of the game. Its fairly easy to find the value on a used car at trade in with the net, the exception being a not running one. If running and in exceptional condition, on the net with the mileage, the range is $12,963 to $14,780. So if they gave me $10,500 then I fanagled them to $11,000... I'm assuming that its logical that $3,780 is within a logical expectation ($14,780 value - $11,000)?

[Catfan73]

I'm no Judge Judy but it seems to me that the failed repairs and the trade in are separate issues. I wouldn't even bring the fact you no longer have the car into the mediation unless asked about it.

[Darrell KSR]

Thanks

I think the only issue is damages. Of course I paid for a repair and basically got nothing for it. I was fortunate that I was able to get WAY over value for the car on trade in however much of that was to offset the cost of the new car. The vehicle we ended up getting was advertised as a optioned out one (premium stereo, back up camera, upgraded interior, etc...) however when we got to the dealership it turns out it was a base model and had zero options. Rather than dropping the price of the car, they increased the trade in value. It made no difference to use as what came out of our pocket was less. They needed the sale price of the car to be a minimum but didn't care so much on the what they gave us for the trade in. All part of the game. Its fairly easy to find the value on a used car at trade in with the net, the exception being a not running one. If running and in exceptional condition, on the net with the mileage, the range is $12,963 to $14,780. So if they gave me $10,500 then I fanagled them to $11,000... I'm assuming that its logical that $3,780 is within a logical expectation ($14,780 value - $11,000)?

I'm not sure I completely followed it, and the math might accidentally work, but that's the wrong measure of damages. The measure of damages is what would a car in need of repairs (before they "fixed" it) be worth; not what a running car would be worth. That's irrelevant for purposes of damages.

Now, if you want to back into the numbers you used, you'd have to show that the value of a "good" car, running car, was $X, but that would be after you put $Y into it for a proper repair, which would reduce the value. Let's pretend that a proper repair was $3,000, and the car would have been worth $15,000 if it was a good running car. Then the value of the car before they "fixed" it was $12,000.

How much was it worth "after" they fixed it? Well, that's the next step. I agree, the value of the trade-in is of only limited value because they often "hide" part of what they'd discount a cash sale for in an enhanced trade-in. But that may be where you start.

Now, if the car wasn't damaged any more by their improper repair, and a proper repair after their "fix" would put it in the value of the "good, running" car, then the measure of tort damages would be $0 (not including consequential damages); i.e., it was worth $12,000 before the $3,000 ineffective repair; the $3,000 ineffective repair didn't fix it, so it was still worth $12,000, and a "good" $3,000 repair would make it worth $15,000 even after their "fix."

But if it would cost more to fix it because of their ineffective, negligent repair--for example, it would have cost $3,000, but now you need a new wheezlegabob and a frinkingtompkin, and the labor, and now it cost $8,000 to put it in "good, running condition," then the measure of damages is $5,000.

I hate to punt on this like this, but I am going to tell you straight. It's small claims court. The judge will do what he wants, regardless of how law is supposed to be applied. Hopefully he/she likes you and your mechanic, and dislikes the bad mechanic. If that's the case, then you may be able to just testify that it cost $5,000 to "undo" what they did, plus $3,000 more, and the judge might even award $8,000. All kind of things happen in small claims court.

However, having said that--I think the judges generally get the right result. Just the numbers and evidence may wobble a bit to and fro.

[Darrell KSR]

Thanks

I think the only issue is damages. Of course I paid for a repair and basically got nothing for it. I was fortunate that I was able to get WAY over value for the car on trade in however much of that was to offset the cost of the new car. The vehicle we ended up getting was advertised as a optioned out one (premium stereo, back up camera, upgraded interior, etc...) however when we got to the dealership it turns out it was a base model and had zero options. Rather than dropping the price of the car, they increased the trade in value. It made no difference to use as what came out of our pocket was less. They needed the sale price of the car to be a minimum but didn't care so much on the what they gave us for the trade in. All part of the game. Its fairly easy to find the value on a used car at trade in with the net, the exception being a not running one. If running and in exceptional condition, on the net with the mileage, the range is $12,963 to $14,780. So if they gave me $10,500 then I fanagled them to $11,000... I'm assuming that its logical that $3,780 is within a logical expectation ($14,780 value - $11,000)?

OK, while i'm eating my boiled egg, I'm going to try a little harder with more specific numbers and see if this works.

Let's use the $14,780 number--that's a good, running car.
How much should it have taken to "fix" the car that was not running, assuming they were never in the picture, to that condition?

You may have provided the answer somewhere in this thread already, but I'm going to assume that a $3,000 repair would have done it correctly (had they done it correctly).

Then the value BEFORE their tortious, negligent conduct was $14,780-$3,000 = $11,780.

They offered you $10,500, then you negotiated to $11,000. IF that was the true "value" of your car, then they "damaged" the car $780.

Your job to prove that the $11,000 was made up of part discount, part trade-in. I might go to them and say," what would you have discounted the car to, had I not had a trade-in? (I.E., how much of the trade-in was really a discount?)

Let's say they say $2,000. Then your argument is that the car was only worth $9,000 when you traded it in, and was worth $11,780 before you traded it in, so they damaged you $2,780.

(EDIT--one other thought that might benefit you. A lot of times car dealers will "dump" the trade-in pretty quickly to a wholesaler or some other car dealer. If you could find out how much they did that for, if they did it, you might find that they accepted $10k or something less than you offered. That would be a good measure of how much the car was worth as well.)

Several different ways to get there, but the bottom line is always, "what was the car worth before the negligent conduct, what was the car worth after the negligent conduct?" The car wasn't running before they were negligent, so you can't claim a good running car was the value, because it wasn't.

[Doc]

You lost me, sort of, but I think I'm with you.

Before the repair, the car was worth 10,000 (as a non-running car but in excellent condition otherwise as far as cosmetics). After the repair it was still worth 10,000 because it was in the same condition---not running. Had the repair worked then the cars value would have been approx 3-4,000 more as a running vehicle. So the value of the car lost no value. My wallet lost value because I paid them $3,700 and they did an inadequate job. So if I interpret you correctly, we only have a breach of contract but no tort?

According to my mechanic, they absolutely should have flushed the oil system, hence the breach of contract ie-improper repair. They noted on their initial paperwork that there was sludge in the engine. They did nothing to address this. They offered me nothing to address this. They replaced the oil but did not flush the system. Running the engine dry would result in metal shavings, sludge etc all accumulating in the engine and none of that was removed. Hence when they replace the sprockets, all that debris remained in the engine to damage the new sprockets within 10 days. So my approach is their repair was inadequate. Its interesting to me as we have similar situations occur where people bring their pets in and we don't offer them everything possible. THOSE are the ones that bite you in the ass. We constantly have battle with out associates about offering everything. If the client declines, fine. You covered your ass. I told the shop to DO WHATEVER IT TOOK. I declined nothing.

I'll be honest, I'm not looking to line my pocket. I'm just looking to get back what was charged to me for a poor repair. The reason we traded the car in was to minimize the damages so the $3,700 didn't become $6,000. It already went from $3700 to $4,400 (and I'm asking for that additional 700 cost at the second dealership) but I could not see pumping another $1,000 into tearing down the motor or $600 to tow it, etc...

[Darrell KSR]

You lost me, sort of, but I think I'm with you.

Before the repair, the car was worth 10,000 (as a non-running car but in excellent condition otherwise as far as cosmetics). After the repair it was still worth 10,000 because it was in the same condition---not running. Had the repair worked then the cars value would have been approx 3-4,000 more as a running vehicle. So the value of the car lost no value. My wallet lost value because I paid them $3,700 and they did an inadequate job. So if I interpret you correctly, we only have a breach of contract but no tort?

Yep, that's correct under the law. The $3,700 you paid them was worthless and constituted a breach of contract. For a tort to occur under the law, you have to have a duty, breach, causation and damages.

Most of that is easy. The defendant had a legal duty to act properly in caring for your car. Why? Because you freaking paid them to do so.
They breached that duty by failing to act in that certain way. How? By negligently fixing the car, not flushing it, whatever.
Causation and Damages are the issue here. What injury was caused? The car didn't run before, it didn't run after. No "injury" creating damages, if it was worth the same before and after they did their tapdance fiasco repair.

But I'd forget this for purposes of presenting it to the judge, and present it the way you intend, with the additional $700 (at least) for the new mechanic, etc. I think those are consequential damages that can flow from their breach of contract as well. And I'm not so sure i'd give up on the car worth the same deal, either. Did their failure to flush it leave stuff in there that cranked around in there, and possibly harmed it more? I'm not sure I'd pay the same for that car after a mucked-up repair, even if a new proper repair "fixes" it. That lessens the value in my eyes, and I think it is reasonable to suggest it would in the judge's eyes, too.

[Doc]

Now I know why I didn't become a lawyer!!

Mediation today...... 2 hours of my life I'll never get back. Ended up getting $1,000 plus court cost (1380 total). Mediator said since I couldn't prove the sludge in the oil caused the second failure, that was a problem. Their defense was you drove the car out so it was fixed, and if you have been patient and agree to have the work down (and risk my money) that it would have been covered (the dealer up north did tear the engine down and warrantied the part). By the time I was done, I just wanted the "F" out of there. Now off to YELP and CAR.COM and any other review site where I can honestly review them. I also informed them that I just purchased a jeep and didn't even go into their dealership, opting to go 40 miles instead. Told them had they treated me fairly, odds are I would have purchased from them and that its a shame that 28K of business went by the wayside. Also let them know the car my daughter bought from them 9 months ago was the last car we will ever purchase from them which may not be a big deal in their eyes. But you would think a business' reputation in a town the size of Stuart would be worth something.

[Darrell KSR]

Lot of law is frustrating, Doc, particularly with respect to litigation--my least favorite part of law. I feel your pain.

The result is ballpark with what I would have expected. Reasonable under the circumstances. Nobody is happy with that kind of result, which means it's probably a decent mediation resolution .