Court: Tightened lug nuts not guaranteed in tire rotation

Neal Rubin | The Detroit News

As an attorney, Steve Lehto is not supposed to disparage the courts. But after an appeals panel's decision last month involving lug nuts, legal fees and the definition of the word "perform," he said he's off the hook because "they ruled in such an idiotic fashion that they are disparaging themselves."

Specifically, three judges from the Michigan Court of Appeals office in Grand Rapids agreed that a tire rotation by a mechanic could be considered performed even if the left front lug nuts weren't tightened and the wheel fell off less than two blocks down the road.

Lehto, a Lemon Law expert, was not involved in Samuel Anaya v. Betten Chevrolet Inc. He worries, however, that the decision will become a potato in the tailpipe of an important consumer protection statute, legitimizing sloppy repair work and detouring drivers who need legal help.

"In the narrowest sense, Anaya lost on appeal," he said. "In the broad sense, every mechanic now has the right to start a job, not complete it, and say, 'OK, I finished it.'"

Anaya's Westland-based appellate specialist, Don Fulkerson, filed a motion for reconsideration in the Court of Appeals last week. He contends that the panel misinterpreted one of two claims made under the Motor Vehicle Service and Repair Act (MVSRA), and ignored the other.

The case stems from October 2013, when Doris Myricks, now 71, took her well preserved 1991 Cadillac Seville to Betten Chevrolet GMC Cadillac in Muskegon for routine service and maintenance. There, the technician rotated her tires but allegedly neglected to torque-wrench one set of wheel nuts.

Myricks was accompanied by her friend, Anaya, now 58, who had a history of back problems and crimes.

The back issues were central to the car dealership's unsuccessful defense of the eventual lawsuit. Anaya's crimes, oddly, helped him win a $40,000 jury award, accompanied by more than $70,000 in attorney fees and costs under MVSRA — the part the judges eventually tossed out.

When the left front wheel departed its axle, the silver Seville slid to the right and slammed into a curb. Anaya said the impact left him with severe pain in his lower back and leg.

"Their big defense was that the injuries were all pre-existing," said Southfield lawyer Mark Boegehold, who won Anaya's case.

Their lesser defense, he said, was to highlight Anaya's unsavory acts, which include burglary, weapons violations, unlicensed driving, drunken driving, domestic violence, felonious assault and multiple incarnations of passing bad checks.

Boegehold obtained the records from Anaya's most recent tenure in prison, he said, and pointed out in court that it included only a few complaints of back problems across five years.

In his summation, Boegehold said, "I told the jury I'd been counting the number of times the defense brought up the fact he'd been in prison, and I stopped counting after 22. They still awarded him money. They didn't have to, and they did."

Then the appellate panel took part of it away, which astonished a Birmingham lawyer who used to defend General Motors against Lemon Law claims.

"The analogy," said Edmund Yee, "is that you hire someone to replace your stove. He pulls the old stove out, puts in the new one, doesn't connect the gas line and the house blows up. Is that to say the guy replaced the stove?"

Yee said there's a "chilling effect" if MVSRA no longer helps recover attorney fees.

"That's the hammer in the statute," he said. In cases with damage to the car but no injury, vehicle owners "would have to spend thousands of dollars more for legal assistance than the cost of the repair. The classic term is, the doors to the courtroom would be closed to them."

"If it's a couple of thousand dollars and I get one-third," Lehto summarized, "nobody's made whole and I won't take the case."

Betten Chevrolet and its law firm did not return calls to discuss the ruling. The judges, two Republicans and a Democrat, made their feelings known in a 6½-page opinion written by Mark Boonstra, appointed by Gov. Rick Snyder in 2012 and elected twice since.

MVSRA, adopted in 1974, declares that a shop cannot charge for repairs that are not performed.

It also says that a mechanic or body shop employee cannot "make, either written or orally, an untrue or misleading statement of material fact to a customer." Nor can it hide or omit a material fact "that the customer could not reasonably know, if that omission tends to mislead or deceive the customer."

The dealership asked at trial that the judge not apply MVSRA, claiming it had completed the tire rotation even if it didn't do a bang-up job. The trial judge instead agreed with Anaya that by not replacing all the lug nuts, the mechanic had failed to perform the repair.

To Anaya's benefit, Boonstra and the other appellate judges agreed with the trial judge that MVSRA applies to passengers and not just drivers.

To Anaya's detriment, the judges looked up "perform" in two dictionaries and concluded that the term "generally refers to completion of an action according to an established procedure; the term does not imply that the action has been completed properly, successfully, or without mistake."

"To accept the trial court's interpretation," Boonstra wrote, "would essentially turn every incorrectly performed repair into a violation of MVSRA."

Lehto, who operates a consumer-oriented YouTube channel from his Southfield office with more than 85,000 subscribers, said that's a misinterpretation of both the letter of the law and the intent.

MVSRA is what's known as a remedial statute, he said, designed to solve a problem.

"I taught law school for 10 years," he said, "and you're supposed to read a remedial statute in favor of the party you're trying to give relief to. A tie goes to the runner."

Fulkerson complained the appeals panel ignored the passage in the law about untrue or misleading statements. When the dealership declared the car ready to go, he said, "that's an untrue statement, as evidenced by the fact the wheel fell off less than half a mile down the road."

Anaya, meanwhile, is still waiting for a check, six years after the injury and two years after the trial.

Boegehold noted that the term "attorney fees and costs" is misleading in cases like Anaya's. The disputed $70,000-plus actually goes to the client, and the lawyer's 33 percent comes from the total of that and the $40,000 in damages.

Depending on the eventual outcome, Anaya stands to receive as little as $26,800 or somewhere close to $75,000.

Boegehold said Anaya operated a food truck for awhile after the run-in with the curb, selling sausages. He has talked of opening a shoeshine stand.

He's presently recuperating from surgery for something unrelated to his back. Ideally, the operation was performed completely.

nrubin@detroitnews.com

Twitter: @nealrubin_dn