Discovery Of Pre-Sale Damage To A New Truck

[ACD]

Hello and thanks for taking my question.

Purchased a new Toyota truck on 5/24/07 in California.
The truck is fairly tall (6ft.+) and looked undamaged upon delivery.
Two weeks later, washed truck and upon washing roof, noticed
paint work tape lines, overspray, dirt particles under paint and scratches on roof.
Returned to dealer at 18 days and 300mi. on odometer after purchase with complaint of truck being damaged/painted and being sold as a new truck.
Dealer claims must have happened at the delivery port by Toyota and is sending a Toyota rep. out to inspect the truck this week.
The truck will obviously need to be painted a second time now with this obvious unacceptable prior damage/work done.
I believe that a new vehicle that needs to be repainted twice and was not disclosed to the new car purchaser (myself) as having damage/paint work done should not qualify as a new vehicle.

My question is, do I have any legal basis to require Toyota to replace the truck with an undamaged truck?

I believe the Toyota rep. will try to argue that a second repaint is acceptable for a new vehicle.

I disagree and would like to prepare for the refusal of Toyota to replace the truck.

Thanks for your help,

Andrew

[aaron]

Have you investigated above and beyond the evidence of repainting, to try to determine if more serious damage was repaired?

[ACD]

Hello Aaron, thanks for your reply.
I will be taking the truck to three autobody shops Tuesday to get unbiased opinions.
I believe that the port history is required to be available through Toyota, and I will also be requesting that.

Do you believe that a multiple scratch/multiple paint damage issue would have less reason for replacement than an actual bent metal/accident type of damage?

I feel that a multiple repaint is a multiple repaint regardless of the initial reason ie.

1. The repaint is not applied the same as factory paint (not baked/cured on).
2. This will be the second repaint to repair the first repaint poor workmanship and scratches.
3. The resale has been irreversibly reduced by the fact of paintwork being performed.
4. Had I known the "new" truck would require two repaints to be acceptable, I surely would not have purchased the vehicle.
5. In the vehicle's present condition, it would never have left Toyota quality control at the factory.
As a result, the truck was allowed to be placed for sale as new without disclosing this to the consumer (myself) which I believe can be argued as fraudulent.

Any thoughts?

[aaron]

The more damage there is to a vehicle, the greater the misrepresentation in contending that it is "new".

§ 9990. For purposes of this chapter, damage sustained by a motor vehicle is material under any of the following circumstances:

(a) The damage required repairs having a value, including parts and labor calculated at the repairer's cost, exceeding 3 percent of the manufacturer's suggested retail price of the vehicle or five hundred dollars ($500), whichever is greater. The replacement of damaged or stolen components, excluding the cost of repainting or refinishing those components, if replaced by the installation of new original manufacturer's equipment, parts, or accessories that are bolted or otherwise attached as a unit to the vehicle, including, but not limited to, the hood, bumpers, fenders, mechanical parts, instrument panels, moldings, glass, tires, wheels, and electronic instruments, shall be excluded from the damage calculation, except that any damage having a cumulative repair or replacement value which exceeds 10 percent of the manufacturer's suggested retail price of the vehicle shall be deemed material.

(b) The damage was to the frame or drive train of the motor vehicle.

(c) The damage occurred in connection with a theft of the entire vehicle.

(d) The damage was to the suspension of the vehicle requiring repairs other than wheel balancing or alignment.

§ 9991. Every dealer shall disclose in writing to the purchaser of a new or previously unregistered motor vehicle, prior to entering into a contract for the vehicle or, if unknown at that time, prior to delivery of the vehicle, any material damage known by the dealer to have been sustained by the vehicle and subsequently repaired.

§ 9992. Every dealer shall disclose in writing to the purchaser of a new or previously unregistered motor vehicle, prior to entering into a contract for the vehicle or, if unknown at that time, prior to delivery of the vehicle, any damage, including, but not limited to, material damage, known by the dealer to have been sustained by the vehicle and not repaired.

§ 9993. Nothing in this chapter permits any dealer to respond to the inquiry of a purchaser in any untrue or misleading manner.

[ACD]

Thanks Aaron, appreciate the reference.

So my argument seems to stem on whether the two damage/repaint attempts exceed 3% of the vehicle value so that it is material (assuming the repaints are of acceptable quality)

Or,

If after 3 attempts at the repair, the truck is still not repaired properly (lemon law)

Somehow it seems that the reduced value of the vehicle along with the non-disclosure would also somehow be material, but I'm not sure if that can be argued through some other part of the vehicle or other codes.