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Irwin Law
Irwin Law, Attorney
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Experience:  Lawyer & Real Estate Broker, 30+ years, foreclosure, land contracts, inheritance, probate.
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When can Incidental & Consequential Damages be included? My

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When can Incidental & Consequential Damages be included? My trailer has had repeated failures. I hired an expert who says the design is badly flawed. I have had numerous failures due to this and spent many thousands of dollars in repairs (which also fail in time. My finances are so drained (and the failures continue) that I fear I will be homeless! I found a lawyer (after many attempts) and we have filed in Federal Court. I understand the "unconscionablity" may allow for compensation: Financial loss? Stress & anxiety? Loss of quality of life?. The problem is ongoing and I live in this trailer full-time. Please define (in legal terms) how the "unconscionability" clause can apply. Is there any case law regarding this? If so, please refer me.

Unconscionability is a defense against the operation of a contract or a particular clause in a contract. It is not a cause of action in and of itself giving rise to damages of any particular kind. In other words, you cannot sue someone for an "unconscionable" act. It is not a tort. Selling a defectively designed and manufactured trailer might be considered a breach of various warranty terms which would constitute grounds for legal relief such as rescission of the contract but, not consequential damages. I suspect that your current attorney may have advised you of that, and you are seeking a second opinion. Financial loss? Stress & anxiety? Loss of quality of life are not recoverable in a contract case. Damages must be reasonably foreseeable, and the law says that a person has a duty to mitigate their damages. You could have sued to rescind the contract right away and moved out rather than continuing to live in it and spending all your money on repairs. I am not unsympathetic to your situation, but the law is very well settled in this regard and to tell you otherwise would be lying to your just to get a good rating for this Answer. We do not do that at Just Answer.

I hope this information is helpful and that you will enter a positive rating. I thank you for submitting your question to Pearl-Just Answer. We appreciate your business. If you need clarification or additional information, please send me a Reply and I will be happy to explain further. Please consult a local attorney to verify the accuracy of this information according to your state's laws.

 

Customer: replied 3 years ago.

It is my understanding that under the Magnuson-Moss Breach of Implied Warranty of Merchantability:
Plaintiff is entitled to the difference in fair market value between the Eliminator as warranted and the defective Eliminator Plaintiff received and/or other remedies provided by state law, including incidental and consequential damages.


I also find:
When a warranty has failed of its essential purpose, the purchaser may be allowed to recover consequential losses despite a contractual exclusion of the same.


I have compelling evidence that the manufacturer should never use these axles installed in a tri-axle application and have hired an engineering expert and found many supporting documents to support my claim.


Isn't this a tort of negligence?

That section means that if a defective part causes a machine to malfunction, there can be liability on the manufacturer for damages beyond the cost of the part or the machine. But this applies in commercial situations, not consumer products. For a complete discourse on this subject see: http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=3139&context=flr There is no such thing in law as "negligent breach of contract", or "unconscionable negligence". There can be no compensation for stress, anxiety or pain and suffering in what is essentially a contract claim. In cases of goods sold, the damages are pretty much limited to the difference between the value as represented vs the value as delivered. I hope this information is helpful and that you will enter a positive rating. I thank you for submitting your question to Pearl-Just Answer. We appreciate your business. If you need clarification or additional information, please send me a Reply and I will be happy to explain further. Please consult a local attorney to verify the accuracy of this information according to your state's laws.

Customer: replied 3 years ago.

The link you gave me was for commercial applications. Mine is not, so it does not help me.


 


Please respond to these:


 


The Magnuson-Moss Warranty Act provides that “a consumer who is damaged by the failure of a warrantor to comply with any obligation under a written warranty may bring suit for damages and other legal and equitable relief.” 15 U.S.C. § 2310(d)(1).




Plaintiff is entitled to the difference in fair market value between the product as warranted and the defective Eliminator Plaintiff received and/or other remedies provided by state law, including incidental and consequential damages.



All I am saying is that you cannot claim tort=type damages for a non- personal injury case like breach of contact where there is no actual contact causing physical injury. A poorly manufactured product doesn't create a cause of action for pain, suffering, economic loss etc... unless it has proximately caused physical injury. If it doesn't, then all you can do is return it to the store and get your money back. That's why torts and contracts are separate courses in law school. The damage concepts behind each are completely different.
You said it yourself: " Plaintiff is entitled to the difference in fair market value between the product as warranted and the defective Eliminator Plaintiff received and/or other remedies provided by state law, including incidental and consequential damages." But don't be confused by the last phrase. You are still in a contract case and damages are specifically limited.
I hope this information is helpful and that you will enter a positive rating. I thank you for submitting your question to Pearl-Just Answer. We appreciate your business. If you need clarification or additional information, please send me a Reply and I will be happy to explain further. Please consult a local attorney to verify the accuracy of this information according to your state's laws.


Customer: replied 3 years ago.

Thanks.. I would not call the manufacturing "poor" but grossly negligent considering that ALL competing manufacturers of the product that failed (including one used by this defendant) specifically warn (in their engineers manual) NOT to use their product in the manner that the defendant did. And, this information is available online. I did also pay for an expert to state what was wrong and why. His statement concurs with what I found and explained it in detail.


 


This case is filed in a state where"incidental & consequential damages" can be considered. We do have a breach of "express warranty." and there is NO viable "remedy" as the trailer CANNOT be made whole (per the expert) without the expenditure of a great deal of lost time and money; In addition, the remainder of the trailer has been damaged - due to the misapplication - to the extent that restoring it to it's original state would cost more than a replacement unit!


 


Can you help by "defining" (in legal terms) "unconscionable? We have every reason to expect the court will accept the testimony of the expert and through documents obtained from other parties that the defendant "should have known" and therefore "allowed" the damages to occur. To me, that is "unconscionable".

It appears that you will not accept any Answer that doesn't agree with your notion of what the law should be in your particular case. But I am still constrained to tell you that centuries of court decisions by judges in tort and contract cases do not agree with you.

There are numerous definitions and explanations of the term "unconscionable" as a legal defense on line. Good luck in your case. Be sure to let us know how it turns out.

I hope this information is helpful and that you will enter a positive rating. I thank you for submitting your question to Pearl-Just Answer. We appreciate your business. If you need clarification or additional information, please send me a Reply and I will be happy to explain further. Please consult a local attorney to verify the accuracy of this information according to your state's laws.

Customer: replied 3 years ago.

My lawyer is asking for these damages, so I need to understand under what circumstances (even if rare) and perhaps an example of just what would be considered "unconscionable" and what kind of compensation is possible other than the company replacing the trailer (and then that trailer will fail in a few years!) or them taking it back and paying me for the depreciated value (and maybe for the repairs?)


 


I have had this problem with the trailer since 2007 with the only resolution being replacement parts (once by them, twice by me as they said I had to have overloaded it and would not address another replacement - I have weigh slips to show I have not.) I have spent over $30,000 in repairs alone and now another expert says I have stress fractures in the frame of the trailer.


 


I live in this full time and MUST travel to make a living. Financially this has just about ruined me and I am still carrying the risk of continued damages (which WILL occur.) I doubt I could sell the trailer to anyone if I tried. It is dangerous! My life and my livelihood are at stake and I have no other "home".


 


I am not trying to be difficult, but this seems to be an unusual case. The company KNEW how I planned to use the trailer. They also had every reason to KNOW that these axles would fail.


 


As you must know under Magnuson-Moss my attorney is compensated by the plaintiff (assuming he loses) and I am told he has to be careful how much time he spends on the case as the court will only allow so much. Hence I am asking questions everywhere I can. Not being a lawyer myself, I do not have access to case law, nor do I have the knowledge to interpret all of it.


 


In my thinking, the fact the the trailer company had every reason to know the problem would occur. That I CAN prove. I call that negligence.


I am not trying to be difficult, but this seems to be an unusual case. NO, IT IS NOT. In fact, it is a very mundane, run of the mill defective product or design case which factories all over the world create by the millions as their products roll off the assembly line. The problem with your case is that the axle, or whatever didn't break and cause you to crash and be injured. Then you would have a product liability case and tort damages. As it is, you have only a simple breach of (implied?) warranty case, which is contractual.
Your lawyer can ask for whatever damages he thinks might help to get you a good settlement. It's called trial strategy. He doesn't have to believe you'll win on those points though. The unconscionable issue doesn't apply to your case because nobody is suing you. SEE: http://en.wikipedia.org/wiki/Unconscionability You are asking for Tort damages in a contract case. Contract is one area of law. Tort/ Negligence is another. They do not intersect when it comes to damages. You might consider discontinuing your legal research and leave that to your attorney. THAT'S WHAT LAWYERS ARE FOR. There's nothing further that I can add to this discussion, so Please rate my Answer.

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Customer: replied 3 years ago.

Thanks..so if I have a crash due to the "defective design" before this case is settled my lawyer can add liability... (I sure hope that does NOT happen.) I would hope the court would consider the NUMEROUS repairs and preventative measures I have taken to keep this trailer usable! In 40+ years of pulling trailers (with my CDL and a Freightliner for the past 16 years) I have NEVER had so many breakdowns... Most of them leaving me by the side of the road a day or more. Since this is my FIRST experience in any litigation I really want to understand the various terms. Thanks for helping. I do trust my lawyer and know he will do the best he can. I dread going to court and am hopeful for an acceptable settlement. If not, I hope my lawyer is a great coach!

I wish you the best of luck.
Customer: replied 3 years ago.

Thank you. We have had 24 documents go back and forth so far (took 6 months). Now waiting on the judge. No evidence or expert documents presented yet.

As I said. best of luck.