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| ixandra James with the car she had purchased the previous day at a Derry used car dealership, after the front wheel fell off in front of the Dana-Farber Cancer Institute in Boston. |
Union Leader Correspondent
DERRY — A disconnect between the state statute governing the sale of “unsafe motor vehicles” and common sense may prove enough for lawmakers to take another look at the language that dictates such sales, following an ongoing dispute between a Derry man seeking restitution for repairs to a car he bought from a local used car dealer.
While the fuzziness in the language points to the possible need for legislative tweaking of the statute, the matter is further complicated by the fact that the owner of the dealership happens to be Town Councilor Kevin Coyle, who said last week that he has requested the state Attorney General’s Office mediate the complaint.
Senior Assistant Attorney General James Boffetti, who is chief of the state’s Consumer Protection & Antitrust Bureau, said there has been some debate in the past at the state level over RSA 358 F, the Unsafe Motor Vehicle Act, which allows for the sale of uninspected motor vehicles, cars “whose brakes, frame, exhaust system, or lights will not pass the state’s safety inspection.”
The statute
In reviewing the complaint filed with the state Attorney General’s Office by David James against HICO Development Inc., Boffetti said that while the statute specifies what legal obligation a dealer has in selling an “unsafe” vehicle, it falls short in detailing what obligation a consumer has to make sure the car is road-worthy before driving it.
“It can be read two different ways. The Department of Safety says it’s legal for a dealer to sell it without an inspection if the customer waives inspection, but I’m not sure they should be doing that,” said Boffetti.
That is where common sense should prevail, Boffetti said.
“The issue for me is whether the consumer had adequate disclosure about the purchase. If they’re being told that the car is OK to drive by the dealer, even thought they’re signing a document that states otherwise, that would be abuse of the law,” said Boffetti.
“But it looks like, in this case, the consumer signed the waiver and knowingly drove the car from the lot. Furthermore, they got the car registered somehow with the DMV and then drove it to Boston the next day, all without having the car inspected — something they should never have done. I know in this case the customer was dealing with some very difficult personal problems, but what part of ‘unsafe’ did they not get?”
Boffetti said the case raise some important questions as to how the statute is being interpreted by the state and practiced by car dealers, and what is in the best interest — and safety — of a consumer.
Boffetti also wants to know how a car sold as “unsafe” was registered one day after purchase. Procedurally, the Department of Motor Vehicles says such vehicles are ineligible for 20-day plates and must be treated the same as salvaged vehicles, and inspected through State Police Troop G.
“I’d still like to know how that happened,” Boffetti said. “Given the Department of Safety’s interpretation of the statute seems to raise some interesting issues in this case, the statute is ripe for a legislative re-look.”
Liability
A question over liability was raised by James after the 2001 Chrysler Sebring he purchased on April 18 from HICO Development Inc., for $1,400, broke down in front of a Boston hospital one day after the purchase.
According to James, the front driver’s side wheel fell off as his wife, Lixandra and daughter, Janelle, had just arrived for their daughter’s chemotherapy treatment.
James contacted the HICO salesman and, according to James, was told the car was sold “as is” and there was nothing the dealer could do. James, who said he has purchased several other cars through HICO without incident, contacted Coyle via email on May 26 explaining the situation.
Based on copies of e-mail exchanges between James and Coyle, Coyle responded the same day contacted. He maintained that while HICO followed all required sales procedures, he was sympathetic to James’ plight and offered to split the cost of repairs with James, who was asking for $1,700 to cover repairs and towing.
Coyle said his offer was as a matter of good faith — knowing that the James family had not only endured more than a year of back-and-forth to Boston for their daughter’s cancer treatment but also knowing that the family had recently walked away from their Tsienneto Road home after years of flooding and damage. They were unable to afford needed repairs due to mounting medical costs, said James.
On June 2 James replied, accepting the offer and asking Coyle how he wished to proceed. Eight days later, Coyle was contacted by a local newspaper and questioned about the sale of the car, and James’ complaint.
Coyle said he felt James was using the media to embarrass him publicly because of his position as a Derry town councilor, a ploy to recoup more money than Coyle had originally offered. Coyle withdrew his offer.
James told Coyle that he had contacted the media before settling on an agreement with Coyle and asked Coyle to go forward with his original offer.
Unconvinced of James’ motives, Coyle asked for an explanation.
Instead, James sent an email blast of his complaint, including photographs, receipts and documents, to more than 30 people, including town administrators and councilors in Derry, and Londonderry where Coyle is employed as a town attorney; to various town and state officials, including the Department of Safety, State Police, the state Supreme Court Professional Conduct Committee and the Better Business Bureau.
James said he’s angry and frustrated that HICO did not disclose that the vehicle was “truly unsafe,” allowing his wife to drive the car from the lot.
“If you can drive off a lot with a car that a dealer knows is unsafe to drive, why is that even allowed?” James said. “For me this is black and white. There is no gray. My wife and daughter could have been killed, had the car fallen apart while they were driving on I-93. It’s a matter of what’s right and wrong. How can someone absolve themselves of responsibility, selling a car that is about to fall apart?”
Inspection waiver
Coyle points to the Department of Safety Notice of Unsafe Motor Vehicle form, on which Lixandra James circled that she did not want to have the car inspected by HICO, and signed underneath a preprinted statement of acknowledgement that she understood the car would not pass inspection as it was sold and should not be driven until safety defects were corrected.
He said a customer can either pay for an inspection through the dealer, or take the car to their own mechanic before buying a car, which is how you determine what the defects are and whether it’s worth buying as it is and fixing it.
“Something bad happened to the car, and I feel bad about it. Even though they signed the form, they feel we, as a car dealer, should do something. As a human being, yeah, I should. I mean, when we heard about his daughter’s illness, we raised at least $700 for them at Christmas from local car dealers. But the way Mr. James has handled this isn’t right. I’ve had to answer to the bar association, my employer, my fellow councilors — this has nothing to do with them,” Coyle said.
Most of the cars sold at HICO are purchased from other dealers, usually cars that have been traded in, Coyle said.
“We aren’t required to inspect them. If we were selling them for thousands of dollars, then yes. But our cars are generally under $2,500. They generally need work. If we know it has a bad tire, we’ll tell you. But by not having an inspection, we can’t know everything that’s wrong. That’s why we offer inspection. We’d prefer you take it to your own mechanic, to be honest, because there is less liability,” Coyle said.
Elusive solution
James said his financial struggles have been compounded by the money he’s had to pour into fixing a car he needed to keep up with hospital visits for his daughter. Coyle should stand behind the car and do the right thing, James said. On Wednesday James received a letter from Boffetti restating Coyle’s offer to pay for half the expenses.
“Mr. Coyle, through his letter to attorney Boffetti, is now attempting to coerce and intimidate Lixandra and I into dropping our complaint. If we are forced to accept his offer simply to regain a percentage of our loss, then that speaks very poorly of the state of consumer protection in New Hampshire, James said. “In my heart and in my mind, there’s only right and wrong. If Mr. Coyle feels no responsibility for this, then that’s how he feels. But if nothing else comes of this, I’d like to know why, then, are used car dealers allowed to sell cars that are literally unsafe — so unsafe it could have cost me my family.”
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