Chapter 218

218.0171(2)(b)3.a. a. With respect to a consumer described in sub. (1) (b) 4., accept return of the motor vehicle, refund to the motor vehicle lessor and to any holder of a perfected security interest in the motor vehicle, as their interest may appear, the current value of the written lease and refund to the consumer the amount the consumer paid under the written lease plus any sales tax and collateral costs, less a reasonable allowance for use.

218.0171(2)(b)3.b. b. Under this subdivision, the current value of the written lease equals the total amount for which that lease obligates the consumer during the period of the lease remaining after its early termination, plus the motor vehicle dealer’s early termination costs and the value of the motor vehicle at the lease expiration date if the lease sets forth that value, less the motor vehicle lessor’s early termination savings.

218.0171(2)(b)3.c. c. Under this subdivision, a reasonable allowance for use may not exceed the amount obtained by multiplying the total amount for which the written lease obligates the consumer by a fraction, the denominator of which is 100,000 and the numerator of which is the number of miles the consumer drove the motor vehicle before first reporting the nonconformity to the manufacturer, motor vehicle lessor or motor vehicle dealer.

218.0171(2)(c) (c) To receive a refund due under par. (b) 1. or 2., a consumer described under sub. (1) (b) 1., 2. or 3. shall offer to the manufacturer of the motor vehicle having the nonconformity to transfer title of that motor vehicle to that manufacturer. No later than 30 days after that offer, the manufacturer shall provide the consumer with the refund. When the manufacturer provides the refund, the consumer shall return the motor vehicle having the nonconformity to the manufacturer and provide the manufacturer with the certificate of title and all endorsements necessary to transfer title to the manufacturer. If another person is in possession of the certificate of title, as shown by the records of the department of transportation, that person shall, upon request of the consumer, provide the certificate of title to the manufacturer upon satisfaction of any security interest in the motor vehicle.

218.0171(2)(cg) (cg)

218.0171(2)(cg)1. 1. If a consumer described under sub. (1) (b) 1., 2., or 3. elects a comparable new motor vehicle on the form specified in sub. (8) (a) 2., no later than 30 days after receiving this form the manufacturer shall agree in writing to provide a comparable new motor vehicle or a refund of the full purchase price plus any sales tax, finance charge, amount paid by the consumer at the point of sale, and collateral costs. Upon the consumer’s receipt of this writing, the manufacturer shall have until the 45th day after receiving from the consumer the form specified in sub. (8) (a) 2. to either provide the comparable new motor vehicle or the refund. During this period, the manufacturer shall exercise due diligence in locating and providing a comparable new motor vehicle. If the manufacturer agrees to provide a comparable new motor vehicle, the manufacturer retains the right to provide the refund if a comparable new motor vehicle does not exist or cannot be delivered within this 45-day period. This subdivision does not apply with respect to heavy-duty vehicles.

218.0171(2)(cg)2. 2. If a consumer described under sub. (1) (b) 1., 2., or 3. elects a comparable new motor vehicle on the form specified in sub. (8) (a) 2., no later than 30 days after receiving this form the manufacturer shall agree in writing to provide a comparable new motor vehicle or a refund of the full purchase price plus any sales tax, finance charge, amount paid by the consumer at the point of sale, and collateral costs. Upon the consumer’s receipt of this writing, the manufacturer shall have until the 120th day after receiving from the consumer the form specified in sub. (8) (a) 2. to either provide the comparable new motor vehicle or the refund. During this period, the manufacturer shall exercise due diligence in locating and providing a comparable new motor vehicle. If the manufacturer agrees to provide a comparable new motor vehicle, the manufacturer retains the right to provide the refund if a comparable new motor vehicle does not exist or cannot be delivered within this 120-day period. This subdivision applies only with respect to heavy-duty vehicles.

218.0171(2)(cg)3. 3. When a manufacturer provides a new motor vehicle under subd. 1. or 2., the consumer shall return the motor vehicle having the nonconformity to the manufacturer and provide the manufacturer with the certificate of title and all endorsements necessary to transfer title to the manufacturer. If another person is in possession of the certificate of title, as shown by the records of the department of transportation, that person shall, upon request of the consumer, provide the certificate of title to the manufacturer upon satisfaction of any security interest in the motor vehicle.

218.0171(2)(cm) (cm)

218.0171(2)(cm)1. 1. To receive a refund due under par. (b) 3., a consumer described under sub. (1) (b) 4. shall offer to the manufacturer of the motor vehicle having the nonconformity to return that motor vehicle to that manufacturer. No later than 30 days after that offer, the manufacturer shall provide the refund to the consumer. When the manufacturer provides the refund, the consumer shall return the motor vehicle having the nonconformity to the manufacturer.

218.0171(2)(cm)2. 2. To receive a refund due under par. (b) 3., a motor vehicle lessor shall offer to the manufacturer of the motor vehicle having the nonconformity to transfer title of that motor vehicle to that manufacturer. No later than 30 days after that offer, the manufacturer shall provide the refund to the motor vehicle lessor. When the manufacturer provides the refund, the motor vehicle lessor shall provide to the manufacturer the certificate of title and all endorsements necessary to transfer title to the manufacturer. If another person is in possession of the certificate of title, as shown by the records of the department of transportation, that person shall, upon request of the motor vehicle lessor, provide the certificate to the manufacturer or to the motor vehicle lessor.

218.0171(2)(cm)3. 3. No person may enforce the lease against the consumer after the consumer receives a refund due under par. (b) 3.

218.0171(2)(cq) (cq) Upon payment of a refund to a consumer under par. (b) 2. b. or (cg) 1. or 2., the manufacturer shall provide to the consumer a written statement that specifies the trade-in amount previously applied under s. 77.51 (12m) (b) 5. or 6. or (15b) (b) 5. or 6. toward the sales price of the motor vehicle having the nonconformity and the date on which the manufacturer provided the refund.

218.0171(2)(d) (d) No motor vehicle returned by a consumer or motor vehicle lessor in this state under par. (b) or sub. (6m), or by a consumer or motor vehicle lessor in another state under a similar law of that state, may be sold or leased again in this state unless full disclosure of the reasons for return is made to any prospective buyer or lessee.

218.0171(2)(e) (e) The department of revenue shall refund to the manufacturer any sales tax which the manufacturer refunded to the consumer under par. (b) if the manufacturer provides to the department of revenue a written request for a refund along with evidence that the sales tax was paid when the motor vehicle was purchased and that the manufacturer refunded the sales tax to the consumer. The department may not refund any sales tax under this paragraph if it has made a refund in connection with the same motor vehicle under par. (f).

218.0171(2)(f) (f) The department of revenue shall refund to a consumer described under sub. (1) (b) 1., 2. or 3. all or part of the sales tax paid by the consumer on the purchase of a new motor vehicle, based on the amount of the refund of the purchase price of the motor vehicle actually received by the consumer, if all of the following apply:

218.0171(2)(f)1. 1. The consumer returned the motor vehicle to its manufacturer and received a refund of all or part of the purchase price but not the corresponding amount of sales tax.

218.0171(2)(f)2. 2. The consumer bought the new motor vehicle after November 2, 1983.

218.0171(2)(f)3. 3. The consumer provides the department of revenue with a written request for a refund of the sales tax along with evidence that the consumer received a certain amount as a refund of the purchase price of the motor vehicle from the manufacturer, that the sales tax was paid when the motor vehicle was bought new and that the manufacturer did not refund the sales tax to the consumer.

218.0171(2)(f)4. 4. The department of revenue has not made a refund under par. (e) in connection with the motor vehicle.

218.0171(3) (3) If there is available to the consumer an informal dispute settlement procedure which is certified under sub. (4), the consumer may not bring an action under sub. (7) unless he or she first resorts to that procedure.

218.0171(4) (4) 

218.0171(4)(a) (a) The department of transportation shall adopt rules specifying the requirements with which each informal dispute settlement procedure shall comply. The rules shall require each person establishing an informal dispute settlement procedure to do all of the following:

218.0171(4)(a)1. 1. Provide rights and procedures at least as favorable to the consumer as are required under 16 CFR Part 703, in effect on November 3, 1983.

218.0171(4)(a)2. 2. If after a reasonable attempt to repair the nonconformity is not repaired, require the manufacturer to provide a remedy as set forth under sub. (2) (b).

218.0171(4)(b) (b) The department of transportation shall investigate each informal dispute settlement procedure provided in this state to determine whether it complies with the rules adopted under par. (a). The department shall certify each informal dispute settlement procedure which complies. The department may revoke certification if it determines that an informal dispute settlement procedure no longer complies with the rules promulgated under par. (a). Annually, the department shall publish a report evaluating the informal dispute settlement procedures provided in this state, stating whether those procedures are certified and stating the reasons for the failure of any procedure to obtain certification or for the revocation of any certification.

218.0171(4)(c) (c) Any person who establishes an informal dispute settlement procedure the certification of which is denied or revoked by the department of transportation may appeal that denial or revocation under ch. 227.

218.0171(4)(d) (d) Annually, any person who establishes an informal dispute settlement procedure shall file with the department of transportation a copy of the annual audit required under 16 CFR Part 703 or a substantially similar audit and any additional information the department requires in order to evaluate informal dispute settlement procedures.

218.0171(4)(e) (e) The department of transportation may consider whether a manufacturer obtains certification under this subsection in determining whether to issue a manufacturer’s license to do business in this state.

218.0171(5) (5) Except as provided in sub. (7) (b), this section does not limit rights or remedies available to a consumer under any other law.

218.0171(6) (6) Any waiver by a consumer of rights under this section is void.

218.0171(6m) (6m) Notwithstanding subs. (2) (b) and (6), if the consumer enters into a negotiated written settlement with the manufacturer regarding any motor vehicle nonconformity, the manufacturer shall no longer be subject to any requirement of this section, except for sub. (2) (d), with respect to that motor vehicle. This subsection applies only with respect to heavy-duty vehicles.

218.0171(7) (7) 

218.0171(7)(a) (a) In addition to pursuing any other remedy, a consumer may bring an action to recover for any damages caused by a violation of this section if the action is commenced within 36 months after first delivery of the motor vehicle to a consumer. The court shall award a consumer who prevails in such an action the amount of any pecuniary loss, together with costs, disbursements and reasonable attorney fees, and may award any equitable relief the court determines appropriate.

218.0171(7)(b) (b) Notwithstanding any other provision of this section or ch. 802, 804, or 806, in an action for a violation under this section, if a court finds that any party to the action has failed to reasonably cooperate with another party’s efforts to comply with obligations under this section, which hinders the other party’s ability to comply with or seek recovery under this section, the court may extend any deadlines specified in this section, reduce any damages, attorney fees, or costs that may be awarded under par. (a), strike pleadings, or enter default judgment against the offending party.

218.0171(8) (8) 

218.0171(8)(a) (a) The department of transportation shall prescribe one or more forms for consumers to use for all of the following:

218.0171(8)(a)2. 2. To elect that a manufacturer replace a motor vehicle with a comparable new motor vehicle as provided under sub. (2) (b) 2. a.

218.0171(8)(a)3. 3. To elect that a manufacturer make a refund as provided under sub. (2) (b) 2. or 3.

218.0171(8)(b) (b) The department shall make any form specified in par. (a) available on the department’s Internet site. Any form specified in par. (a) shall require the consumer to provide all of the following information:

218.0171(8)(b)1. 1. The consumer’s contact information.

218.0171(8)(b)2. 2. Identification of the motor vehicle dealer from which the motor vehicle was purchased, the date of delivery of the motor vehicle from the dealer, and the purchase price of the motor vehicle.

218.0171(8)(b)3. 3. Identification of any holder of a perfected security interest in the consumer’s motor vehicle.

218.0171(8)(b)4. 4. The mileage of the motor vehicle at the time the first nonconformity is asserted to have occurred.

218.0171(8)(b)5. 5. A place on the form to make the election described in par. (a) 2. or 3.

218.0171(8)(b)6. 6. An itemization of any other damages claimed by the consumer.

218.0171(8)(c) (c) If any form specified in par. (a) is required under this section to be used by a consumer and the consumer has not provided all information required under par. (b) to the satisfaction of the manufacturer, the manufacturer may, within 30 days of receiving the form, request that the consumer provide additional information required under par. (b). If the manufacturer makes such a timely request for additional information, any time period under sub. (2) (c), (cg) 1. or 2., or (cm) 1. does not begin to elapse until the consumer provides this additional information.

218.0171 History History: 1983 a. 48; 1985 a. 205 ss. 1m to 6, 8; 1987 a. 105, 169, 323, 403; 1989 a. 31; 1999 a. 31 s. 287; Stats. 1999 s. 218.0171; 2001 a. 45; 2009 a. 2; 2011 a. 32; 2013 a. 101; 2015 a. 173.

218.0171 Cross-reference Cross-reference: See also ch. Trans 143, Wis. adm. code.

218.0171 Annotation An action to recover under sub. (1) (h) 2. was not defeated by the repair of reported nonconformities. Hartlaub v. Coachmen Industries, Inc., 143 Wis. 2d 791, 422 N.W.2d 869 (Ct. App. 1988).

218.0171 Annotation “Out of service” under sub. (1) (h) 2. includes periods during which the motor vehicle is incapable of providing service because of warranty nonconformity, regardless of whether the vehicle is in the owner’s possession and driveable. Vultaggio v. General Motors Corp., 145 Wis. 2d 874, 429 N.W.2d 93 (Ct. App. 1988).

218.0171 Annotation “Disbursements and reasonable attorney fees” under sub. (7) include post-trial disbursements and reasonable fees incurred. Chmill v. Friendly Ford-Mercury of Janesville, Inc., 154 Wis. 2d 407, 453 N.W.2d 197 (Ct. App. 1990).

218.0171 Annotation Sub. (2) (c) does not require that a vehicle continue to have a nonconformity for a consumer to demand a refund when the vehicle has been out of service at least 30 days; “having the nonconformity” is a general reference to the vehicle in question, rather than a refund prerequisite. Nick v. Toyota Motor Sales, U.S.A., Inc., 160 Wis. 2d 373, 466 N.W.2d 215 (Ct. App. 1991).

218.0171 Annotation Under sub. (1) (a), the allowance for alternate transportation is limited to the cost in connection with the repair of the nonconforming vehicle. Nick v. Toyota Motor Sales, U.S.A., Inc., 160 Wis. 2d 373, 466 N.W.2d 215 (Ct. App. 1991).

218.0171 Annotation If an owner gives notice and a single opportunity to repair, the owner cannot refuse additional attempts to repair within 30 days and sue under the Lemon Law. Carl v. Spickler Enterprises, Ltd., 165 Wis. 2d 611, 478 N.W.2d 48 (Ct. App. 1991).

218.0171 Annotation Although the plaintiff arguably granted the automaker an extension of the 30-day period under sub. (2) (c), the prohibition of waivers of claims under sub. (6) resulted in the automaker being liable for failing to satisfy the claim within the 30-day period. Hughes v. Chrysler Motors Corp., 188 Wis. 2d 1, 523 N.W.2d 197 (Ct. App. 1994).

218.0171 Annotation Affirmed on other grounds. 197 Wis. 2d 973, 542 N.W.2d 148 (1996), 93-0208.

218.0171 Annotation Attorney time spent prior to the expiration of the 30-day period under sub. (2) (c) is recoverable under sub. (7). Hughes v. Chrysler Motors Corp., 188 Wis. 2d 1, 523 N.W.2d 197 (Ct. App. 1994).

218.0171 Annotation Affirmed on other grounds. 197 Wis. 2d 973, 542 N.W.2d 148 (1996), 93-0208.

218.0171 Annotation A manufacturer is not liable for defects in dealer added accessories not manufactured or distributed by the manufacturer. Malone v. Nissan Motor Corp. in U.S.A., 190 Wis. 2d 436, 526 N.W.2d 841 (Ct. App. 1994).

218.0171 Annotation Pecuniary loss under sub. (7) includes the entire purchase price of the vehicle. Hughes v. Chrysler Motor Corp., 197 Wis. 2d 973, 542 N.W.2d 148 (1996), 93-0208.

218.0171 Annotation The 30-day time limit in sub. (2) (c) is not suspended or delayed by the parties’ disagreement over the amount of the refund. The manufacturer’s options are to, within the 30-day period, pay the amount demanded or pay the amount it deems appropriate and be subject to possible suit over the disputed amount. Church v. Chrysler Corp., 221 Wis. 2d 460, 585 N.W.2d 685 (Ct. App. 1998), 97-2065.

218.0171 Annotation It is proper to deduct the amount of a cash rebate in determining the refund amount. Church v. Chrysler Corp., 221 Wis. 2d 460, 585 N.W.2d 685 (Ct. App. 1998), 97-2065.

218.0171 Annotation A “new motor vehicle” under sub. (2) (a) does not include a previously-owned vehicle that is subject to the original manufacturer’s warranty and is less than one year removed from first delivery to a consumer. Schey v. Chrysler Corp., 228 Wis. 2d 483, 597 N.W.2d 457 (Ct. App. 1999), 98-1277.

218.0171 Annotation A vehicle used as a demonstrator was a “comparable new motor vehicle” under sub. (2) (b) when the defective vehicle had also been a demonstrator. Sub. (2) (b) applies when a reasonable attempt to repair has been established. An action seeking a remedy under sub. (7) for violation of sub. (2) (a) applies only to a customer who cannot establish a reasonable attempt to repair and is not entitled to the remedy under sub. (2) (b). Dussault v. Chrysler Corp., 229 Wis. 2d 296, 600 N.W.2d 6 (Ct. App. 1999), 98-0744.

218.0171 Annotation As used in sub. (7), “any damages” does not include personal injury damages. Gosse v. Navistar International Transportation Corp., 2000 WI App 8, 232 Wis. 2d 163, 605 N.W.2d 896, 98-3499.

218.0171 Annotation A purchaser’s awareness of defects in a vehicle prior to delivery does not make the Lemon Law inapplicable. Dieter v. Chrysler Corp., 2000 WI 45, 234 Wis. 2d 670, 610 N.W.2d 832, 98-0958.

218.0171 Annotation A manufacturer of component parts who ships completed parts to an automobile manufacturer is not liable under this section. Harger v. Caterpillar, Inc., 2000 WI App 241, 239 Wis. 2d 551, 620 N.W.2d 477, 00-0536.

218.0171 Annotation This section is a stand alone statute that is not dependent upon or qualified by the Uniform Commercial Code. An obligation of good faith by all parties is rooted in the statute. There is no basis to argue that a party who acts in compliance with the statute acts in bad faith. Herzberg v. Ford Motor Co., 2001 WI App 65, 242 Wis. 2d 316, 626 N.W.2d 67, 00-1284.

218.0171 Annotation A person who purchases a vehicle at the conclusion of a lease term is no longer a consumer within the meaning of sub. (1) (b) 4. and is not entitled to any relief under the Lemon Law. Varda v. General Motors Corp., 2001 WI App 89, 242 Wis. 2d 756, 626 N.W.2d 346, 00-1720.

218.0171 Annotation A manufacturer did not fulfill its obligation to provide a comparable new motor vehicle under sub. (2) (b) by offering to replace a consumer’s nonconforming tow truck with a new cab and chassis but without a new tow unit, although the tow unit was not manufactured by the manufacturer. Kiss v. General Motors Corp., 2001 WI App 122, 246 Wis. 2d 364, 630 N.W.2d 742, 00-0626.

218.0171 Annotation Enforcement of an informal settlement decision under sub. (3) is not limited to remedies under ch. 788, applicable to arbitration. Acceptance of the decision by the consumer does not prevent the consumer from pursuing an action under sub. (7) to enforce the decision. Kiss v. General Motors Corp., 2001 WI App 122, 246 Wis. 2d 364, 630 N.W.2d 742, 00-0626.

218.0171 Annotation In order to receive a refund or replacement vehicle under sub. (2) (b), the consumer must offer to transfer title back to the manufacturer and, upon receipt of the refund or replacement, deliver the vehicle and its title to the manufacturer. A vehicle owner who transferred the vehicle back to the dealer eight months prior to seeking relief could not fulfill these requirements and was no longer a consumer who could assert a claim under this section. Smyser v. Western Star Trucks Corp., 2001 WI App 180, 247 Wis. 2d 281, 634 N.W.2d 134, 00-2482.

218.0171 Annotation Delivery of a refund check to a dealer and a fax to the consumer’s attorney is not delivery of the refund to the consumer for purposes of determining whether the refund is timely made under sub. (2) (c). Estate of Riley v. Ford Motor Co., 2001 WI App 234, 248 Wis. 2d 193, 635 N.W.2d 635, 00-2977.

218.0171 Annotation Sub. (2) (b) 3. does not apply when a Lemon Law action is filed. Instead, the sub. (7) pecuniary loss provisions apply. The current value of a vehicle lease is not the proper measure of damages under sub. (7). Estate of Riley v. Ford Motor Co., 2001 WI App 234, 248 Wis. 2d 193, 635 N.W.2d 635, 00-2977.

218.0171 Annotation For purposes of triggering the 30-day time limit under sub. (2) (c), the consumer must either demand that the manufacturer provide a new vehicle or demand that the manufacturer refund the purchase price. The choice cannot be left to the manufacturer, and the manufacturer cannot be offered a third choice. Berends v. Mack Truck, Inc., 2002 WI App 69, 252 Wis. 2d 371, 643 N.W.2d 158, 01-0911.

218.0171 Annotation A vehicle is not free from non-conformities simply because the consumer is able to drive it. Dobbratz Trucking & Excavating, Inc. v. PACCAR, Inc., 2002 WI App 138, 256 Wis. 2d 205, 647 N.W.2d 315, 01-1091.

218.0171 Annotation This section makes the vehicle manufacturer liable for nonconformities to the engine even though the engine is not covered in the manufacturer’s express warranty. Schonscheck v. Paccar, Inc., 2003 WI App 79, 261 Wis. 2d 769, 661 N.W.2d 476, 02-1413.

218.0171 Annotation A consumer who demands a replacement vehicle under this section impliedly offers to transfer title to the old vehicle as required under sub. (2) (c). Garcia v. Mazda Motor of America, Inc., 2004 WI 93, 273 Wis. 2d 612, 682 N.W.2d 365, 02-2260.

218.0171 Annotation A consumer has a duty to act in good faith in pursuing a Lemon Law claim. Under sub. (2) (b) 2. b., the phrase “refund to any holder of a perfected security interest as [its] interest may appear” requires the payor transferring the correct sum to the secured lender in a separate check, not giving a lump-sum check to the consumer and leaving the consumer to sort it out with the lender. If a consumer intentionally thwarted the manufacturer’s attempt to make a refund by failing to provide necessary information about the consumer’s auto loan, the consumer is not entitled to the Lemon Law’s statutory remedies. Marquez v. Mercedes-Benz USA, LLC, 2008 WI App 70, 312 Wis. 2d 210, 751 N.W.2d 859, 07-0681.

218.0171 Annotation When the purchaser objected to signing documents as a condition to receiving a replacement vehicle and the manufacturer agreed to waive the signing requirement, it did not support a finding that the purchaser was required to sign prohibited documents in order to obtain the replacement vehicle, and no violation of this section occurred. BCR Trucking, LLC v. PACCAR, Inc., 2009 WI App 36, 316 Wis. 2d 465, 765 N.W.2d 828, 08-1196.

218.0171 Annotation When a consumer who is leasing a motor vehicle brings an action against the manufacturer of the vehicle under sub. (7) then exercises an option to purchase the vehicle under the terms of the lease, the consumer is not entitled to damages for the price of the voluntary purchase because the purchase is not caused by any violation of this section by the manufacturer. Furthermore, a consumer’s refund under sub. (2) (b) 2. b. or 3. a. is subject to a reasonable allowance for use. Because sub. (7) is read in conjunction with the rest of this section, the amount of pecuniary loss under sub. (7) must incorporate a reasonable allowance for use before the pecuniary loss is doubled. Tammi v. Porsche Cars North America, Inc., 2009 WI 83, 320 Wis. 2d 45, 768 N.W.2d 783, 08-1913.

218.0171 Annotation A dealer is not a “manufacturer” under sub. (1) (c) that is liable for the failure of the component parts it installed. Despite the assertion that a dealer essentially assembled a motorcycle when it installed accessories, the Lemon Law provision specifically excludes a “motor vehicle dealer” from the definition of “manufacturer.” Goudy v. Yamaha Motor Corp., USA, 2010 WI App 55, 324 Wis. 2d 441, 782 N.W.2d 114, 09-0617.

218.0171 Annotation The plain language of sub. (7) supports the conclusion that a plaintiff may maintain an action for equitable relief under sub. (7). In order to obtain relief under sub. (7), however, the plaintiff must prove a violation of some part of this section. Kilian v. Mercedes-Benz USA, LLC, 2011 WI 65, 335 Wis. 2d 566, 799 N.W.2d 815, 09-0538.

218.0171 Annotation Under sub. (2) (cm) 3., a lender who continues to enforce a lease after the consumer returns the vehicle and receives a refund from the manufacturer may be held to violate the plain language of this section prohibiting any person from doing so. Kilian v. Mercedes-Benz USA, LLC, 2011 WI 65, 335 Wis. 2d 566, 799 N.W.2d 815, 09-0538.

218.0171 Annotation A prevailing party in an equitable action under sub. (7) is entitled to costs, disbursements, and reasonable attorney fees, but in this case the prevailing party was not entitled to an award for pecuniary loss. The legislature did not intend that consumers who have already received a proper refund should also recover twice the amount they paid under the lease as pecuniary loss. Such a result would provide a windfall without advancing a central purpose of sub. (7)—discouraging manufacturers from withholding legitimate refunds. Kilian v. Mercedes-Benz USA, LLC, 2011 WI 65, 335 Wis. 2d 566, 799 N.W.2d 815, 09-0538.

218.0171 Annotation A manufacturer may avoid Lemon Law penalties for failing to provide a refund within the 30-day period under sub. (2) (c) if it proves that the consumer intentionally prevented the manufacturer from providing a refund within the 30-day statutory period. The manufacturer must meet the middle burden of proof of “clear and convincing” evidence in proving its affirmative defense that a consumer intentionally prevented it from providing a refund within the 30-day statutory period under the Lemon Law. Marquez v. Mercedes-Benz USA, LLC, 2012 WI 57, 341 Wis. 2d 119, 815 N.W.2d 314, 10-0826.

218.0171 Annotation This section requires that a plaintiff prove two elements in order to recover: 1) that the car is a lemon; and 2) that the manufacturer failed to provide a comparable replacement within the provided timeframe. It was not inconsistent for the defendant to defend both elements of the plaintiff’s claim. Because the defendant’s defenses were not inconsistent, the defendant was not required to either assert 1) that the car was not a lemon, or 2) that the car was a lemon but that it provided a comparable replacement under the election of remedies doctrine. Porter v. Ford Motor Co., 2015 WI App 39, 362 Wis. 2d 505, 865 N.W.2d 207, 14-0975.

218.0171 Annotation Sub. (2) (a) does not say that the vehicle is available for repair only if it is actually taken to the manufacturer or an authorized dealer. The Lemon Law protects consumers who go to a repair facility authorized by the manufacturer whether the facility is a manufacturer’s authorized motor vehicle dealer or not. Burzlaff v. Thoroughbred Motorsports, Inc., 758 F.3d 841 (2014).