What to do if our car was serviced at a dealership that mentioned the differential fluid was low and that let us drive off when it was in need if immediate repair?

In passing, they mentioned it should be looked at and that they didn’t have time that day but it was not of immediate concern. We took the vehicle home and within 5 miles the front differential seized up and ruined both bearings. The estimated cost to repair is around $2000, plus the tow. Our mechanic indicated there was roughly 2 teaspoons of differential fluid left. Is there any form of neglect on the dealership’s behalf?

Asked on May 29, 2014 under Accident Law, Montana

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

The dealership is liable for negligence which is the failure to exercise due care (that degree of care that a reasonable auto dealership would have exercised under the same or similar circumstances to prevent foreseeable harm).  A reasonable dealership would have told you the danger of driving the car with so little differential fluid remaining.

Prior to filing a lawsuit for negligence against the dealership, it may be possible to settle the case with the dealership's insurance carrier.  If the case is settled with the dealership's insurance carrier, NO lawsuit is filed.  If the case is NOT settled with the dealership's insurance carrier, file a lawsuit for negligence against the dealership.  Your damages (the amount of compensation you are seeking in your lawsuit) would be the cost of repairs to your car, cost of towing, and the cost of a rental car if you need a rental car while your car is being repaired.

You will need to mitigate (minimize) damages which means that if you have the car repaired by another mechanic, the mechanic's fee must be comparable to other mechanics in the area.  If you were to select the most expensive mechanic you could find, you have failed to mitigate damages and your damages will be reduced accordingly.  You will also need to mitigate (minimize) damages by selecting a rental car with a reasonable rate.  If you were to select the most expensive rental car you could find, you have failed to mitigate damages and your damages will be reduced accordingly.

You may be able to file your lawsuit against the dealership for negligence in Small Claims Court.  In addition to the above damages, your damages should also include the court filing fee and process server fee.

If the case is NOT settled with the dealership's insurance carrier, your lawsuit against the dealership for negligence must be filed prior to the expiration of the applicable statute of limitations or you will lose your rights forever in the matter.


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