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Editor's Notebook

Higher Standards?: New Form of Liability Suit Raises Issue of What Customers Should Expect

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What do customers have a right to expect from your business? When they come in for new tires or complaining about some odd sound in the rear end, what level of service should they – or can they legally – expect from you?

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Should there be a “standard of care” for tire retailers and shops? And, what should it be?

It’s a curious question, one headed for “critical” in the coming months because it’s now being asked by attorneys.

Worse, it has created situations in which tire dealers are going one against the other, with the plantiff’s witness dealer held up as exemplary while the other is hung out to dry.

Old friend Ed Wagner clued me in on this new form of legal sharkery. He’s been involved in a couple of “standard of care” cases of late, and it bothers him to see how they unfold.

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What’s happening is simple. Knowing that big paydays from suing tiremakers have passed, lawyers have turned their attention to easier prey – tire retailers – taking on injury cases involving wheel offs, blowouts, rollovers, “defective” and “old” tires, and so forth. They claim the defendant tire dealer failed to apply a proper “standard of care,” causing their client’s unfortunate accident.

Problem is, this industry has no such “standard of care.” At least not to the degree that the medical community has, where each and every action by hospitals, doctors and nurses is strictly dictated (and strictly enforced) by well-established protocols. Whether it’s a simple cold or a broken limb, every doctor follows the same exact examination and treatment process. Failure to do so could mean a colleague reporting you or, worse yet, you writing a big fat settlement check.

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In the tire industry, what we have are procedures and “tricks of the trade,” ways of accomplishing tasks like mounting/demounting and tire repair, for example, that are as varied as there are tire dealers. Some dealers employ strict, by-the-training-manual systems. Others have “systems” built on expediency, lack of concern, old wives’ tales or just plain laziness. Hard to tell, sometimes, where one ends and the other begins.

And the lawyers count on that. They know this industry lacks firm, repeatable protocols for each and every task we encounter every day. So, they find a model citizen – another tire dealer who appears to do things “by the book” – and establishes that dealer’s system as being the appropriate “standard of care.”

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Wagner said it bothers him to see dealer pitted against dealer, two people who don’t even know each other being compared as though they were identical twins. Often, the supposed “standard of care” comes down to nit-picky points, such as shop lighting, equipment condition, shop cleanliness or notations on work orders.

Mostly, though, the “standard of care” question comes down to technician training – how much, how long, how often, how detailed and by whom – and the dealer’s procedures for tire mounting/demounting, rotation, balancing, fastener torquing, tire and vehicle inspection – everything that occurs in any dealership every day.

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Training is the real center point of most of these suits, Wagner said. “A guy may have 45 years of experience, but without good, consistent training, he has one year of experience 45 times.”

Wagner doesn’t think we need rules, “just reasonable guidelines on how to do things.” I agree. Firm, medical-style protocols are too much. But I would suggest changing Ed’s quote above to: “reasonable guidelines taught to all that everyone follows every time.”

Some great resources have already compiled “recommended practices,” suggestions and guidelines. Perhaps TIA and RMA (who want to work together) can form those into some universal guidelines we could all use.

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Across the pond, Michelin, Bridgestone and others have or are introducing certification programs for their own dealers. There could be some enlightenment there.

Wagner said he’s seen the standard of care ploy come into vogue only in the last 18 months, but it is popping up more and more. Lawyers have a strong communication system, and one shark’s success becomes another’s play within days, thanks to information sharing on the Internet.

Small dealers are not immune, but “big dealers mean big insurance companies, which means big pockets,” said Wagner, who has been called by defendants to testify in such suits.

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“We have a lot to do as an industry,” he said.

Yes, we do. And if independent dealers are to survive and thrive, they should work to a higher standard. Accidents are going to happen, and so are mistakes. But if there was one accepted standard everyone employed, how many of these malicious lawsuits could be foiled?

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