Tuesday’s Wall Street Journal has an interesting article on title insurance, which some regard as a bit of a scam – enough so that one state, Iowa, prohibits it outright. OK, so maybe prohibit is the wrong word. Let’s just say they prohibit title insurance like most states that have lotteries prohibit gambling. Or given that their own title certificates are reinsured by the same eeeeeevil title insurers they forbid to issue policies in the state, maybe the better analogy would be to a hypothetical state that forbid gambling while maintaining a lottery and subcontracting that lottery out to Harrah’s. Something like that, I dunno.

The thing about title insurance is that it’s an odd bird that by all right really shouldn’t’ be called insurance. If I spent $20,000 on a new car, with $1,000 going to the manufacturing cost of the vehicle itself and the other $19,000 on its warranty, it might make sense to call my car an insurance policy, since after all, that’s where most of the price goes. But we don’t call cars insurance policies just because they carry warranties; we recognize that they are products that are primarily about doing something other than risk allocation. The element of the warranty is merely ancillary to that. Ditto for title insurance, where upwards of 80%, often more like 90%, is retained by the agent as commission that the insurer never sees. That’s because far more blood, sweat and tears is spent scouring public records for potential title defects, fixing such defects, etc. than in insuring against the relatively remote risk that the abstracter missed something. So calling the composite product “insurance” is a bit like calling a dog a tail.

That said, if you do think you’re paying too much for title insurance – the insurance part, not the abstracting – then it would seem that the most obvious solution would be to abolish the monoline laws in many states^* that forbid title insurers to write other lines of insurance and vice-versa. If every property and casualty insurer could compete with your title insurer, the market wouldn’t be so damned concentrated, and the famous invisible hand would drive prices down, no?

Full disclosure: When I lived in Virginia I worked for what at the time was the fourth largest title insurer in the country. There’s no love lost between me and that particular title insurer, however, and I can’t say I shed a tear when they declared bankruptcy last year. Schadenfreude ist die schönste Freude.

^*With ramifications for all states, since several of those monoline laws cover insurance written in other states, as well.

I spent the past weekend in Connecticut, courtesy^* of Delta Airlines, which thinks Atlanta is on the way from everything to everything else. On Friday I flew from Greensboro (GSO) to Atlanta (ATL), and from ATL to New York LaGuardia (LGA). On Sunday, I returned from New York JFK to ATL, and from ATL back to GSO. Today I received credit for my frequent flyer miles from Continental, which is still partnering with Delta but not for long. Credit was as follows:

Note that Flights 5099 (GSO-ATL) and 6474 (ATL-GSO) both have the same number of miles: 306. That kinda makes sense since you’d figure that Greensboro is the same distance from Atlanta as Atlanta is from Greensboro. Now compare the mileage credit for Flight 18 (ATL-LGA) vs. 1499 (JFK-ATL). Possible explanations:

1. JFK is 381 miles from LGA.
2. The pilot on Flight 18 took a really circuitous route to NY, but the pilot on Flight 1499 took a more sensible one.
3. The business class section of the plane travels 381 miles farther than coach.
4. ???

^*As compensation for last year’s disaster, this flight would have been free if I hadn’t originally booked it for this coming weekend and then had to re-book. As it was, it was very cheap, and I was allowed to check a bag for free since I had technically “bought” the ticket a year ago. And taking the free flight got me just enough miles on Continental to qualify for another free flight. Cool, eh?

I’m long over my one-man boycott against Wal-Mart for doing the equivalent of handing someone a 12 caviar specimens for requesting a dozen eggs, but apparently, the gunnies are not done taking me to task for the same. What is it about gun owners that cause them to accept and even vigorously defend a craptastically low level of customer service no consumer would tolerate for anything else?

Last fall I bitched about Wal-Mart’s policy of refusing to accept returns on firearm or ammo purchase, even when they were the ones who screwed up, and the customer’s sole error was in trusting a Wal-Mart employee to know WTF he is doing. The official policy is that you can’t return ammo. Apparently, that’s not quite true. I’d like to say I don’t condone what this guy did, and that the right thing to do in such cases is to expose a bad policy publicly rather than to take the law into your own hands, but then again, I took a lot more grief from Wal-Mart apologists for bitching about the policy than this guy will likely get for … well … returning his ammo contrary to store policy.

Kindly give me one good reason why I should pay you more money for the “service” of transmitting enough ones and zeroes over the Internet to enable me to print something on my own computer than I pay Amazon to actually, you know, send me stuff through companies that actually charge you money to send me stuff.

Via Instapundit, here’s an invention that came two years too late for Sr. Xrlq, who was paralyzed in a low-speed bicycling accident in early ’07 while wearing the old fashioned kind. If you ride, it’s not too late for you.

Today I went through the drive-thru at a local McDonald’s to get some “food” for Mrs. X. Mrs. X hates mustard and onions, and doesn’t care too much for cheese on hamburgers, either, so I ordered “Combo #3 with ketchup only, no onions, cheese or mustard.” I got to the window, paid my money and returned home, only to find out the hard way that while Mrs. X’s Coke and fries were remarkably onion-, cheese- and mustard-free, the same could not be said of her Quarter Pounder. I called the number on the receipt (which merely states “1 QTR CHEESE MEAL,” and doesn’t say whether or not it contains dreaded mustard), asking to speak to the manager on duty. I got put on hold indefinitely, and got cut off twice before finally getting through to anyone. When I finally did get through to a manager, the following conversation ensued:

Me: Hello, I was just at your restaurant and ordered a Quarter Pounder combo without cheese, onions or mustard. When I got home, I found that the burger had all the items I had requested NOT to be there.
Manager: I’m sorry for the mix up, sir, but all fast food sales are final.
Me: Excuse me? I ordered one product, and your employee gave me something else. I think I should get my money back, or a free meal to replace this one, something.
Manager: Sorry, no can do. All sales are final.
Me: That’s unreasonable. You are the one who screwed up here, not me. Why should I bear the costs of your failures?
Manager: All fast food sales are final. Corporate policy. You don’t really expect us to re-stock your partially eaten cheeseburger and sell it to someone else, do you? Eeeewwww! Besides, just think of the liability issues. How do we know you didn’t blow your nose in your cheeseburger or pee in your Coke? That latter practice is common in China, according to my 8-year-old.
Me: I don’t care what you want to do with the food, or if you even want to take it back at all. I just want my money back. I can dispose of the food myself.
Manager: What, and give you something for free? I don’t think so. Besides, I couldn’t give you free stuff even if I wanted to. Federal law, dontcha know. So there.
Me (losing patience): No, it’s not! There is no federal law requiring you to act like a jerk. You’re doing that all by your own widdle selfy-welfy.
Manager (in indignant tone): Sir, I don’t appreciate being called a McJerk. Just because I’m acting like one doesn’t make it OK for you to McCall me one. I have McFeelings, too, you know.
Me: Cut the McCrap. The easiest way to not be called a McJerk is to make things right with your McCustomer rather than deliberately McAlienate him. Now go do the right McThing and refund my McMoney already, and I’ll get the McFuck out of here.
Manager: Nagadoit. Naga, naga, nagannadoit. It was your fault anyway, dumbass. Everyone knows what an onion or mustard looks like. If you didn’t want those ingredients you shouldn’t have bought a burger that contained them.
Me: But I couldn’t see what you put in the burger. By the time it was presented to me for sale, it was all wrapped up to go in a bag, together with the other items I had ordered.
Manager: Christ on a crutch, man up already. If you had demanded full inspection at POS, of course we would have allowed it. You didn’t, so caveat emptor, baby!
Me: Here’s my caveat, bitch: if you don’t straighten this out quick, you won’t have to worry about me “empting” from your establishment again.
Manager: Oh, now you got me shaking in my boots! Over a million billion gazillion served, but we might not get to serve Xrlq anymore! Say it ain’t so!
Me: Look, I don’t care how big or small your establishment is. Your clerk is the one who gave me the wrong thing, not me. Yeah, maybe I could have checked his work, but why on earth should I have to? Getting my order right is his job, not mine.
Manager (rolling eyes): Oh really? Who do you think we are, Friggin’ Morton’s or something? What part of McFucking Donald’s don’t you understand? We’re famous for our low prices, not for our brilliant burger flippers. Everyone knows the average McDs manager is a junior high grad on a good day, and that everyone else who works there is dumber than a bag of retards. Didn’t you?
Me: Well, to be honest, yes, but I still think it’s the merchant’s job to give the customer what he asked for, and not to quietly slip him something else, instead.
Manager: Look, it’s not our job to get anything right. It’s your job to check all our work and fix all of our mistakes before you leave the store. Man up and admit your mistake, or better yet, maybe you should find newr wife who actually likes onions, cheese and mustard.
Me: I’ll pass on the new wife, thank you, but as for admitting mistakes, I think it’s clear that my only mistake in this transaction was in dealing with dumbasses like you in the first place. I won’t be repeating that mistake, so enjoy the unearned $3.30 plus tax you just squeezed out of me. Don’t spend it all in one place.
Manager: Buh-bye.

OK, I lied. Actually, I got the manager on the first call, and we had a 2 minute conversation in which she apologized profusely, took down my name and Mrs. X’s, and advised us that the next time either of us were in the area we could stop by and get the meal we were supposed to have gotten today. Imagine that!

A number of commenters have latched on to the “crunchy frog” warning that can be found at every gun store noting that all ammunition sales are final. The implication is that final means final, so how could I be such a dumbass as to think there’s an implicit exception for “sales” in which they gave me a different product than the one I had requested. And I suppose that if I read the signs literally, that would be the result. However, as a lawyer (albeit emphatically NOT a trial lawyer) I know damned well that even statutes can’t always be read hyper-literally, and signs on the wall sure as hell can’t be. A certain amount of common sense has to come into play, as well, or at a minimum, one should be able to assume that a sign is intended to mean something that conforms to the law.

Express warranties are covered by North Carolina General Statute § 25‑2‑313, of which Subsection (1)(b) of that statute provides:

Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.

Wal-Mart’s idiot clerk told me that ammo he was giving me was .357 Magnum, just as I had requested. That was part of the basis of the bargain. I sure as hell wasn’t going to buy anything else in its place. Therefore, he created a warranty that the ammo he sold me would, in fact, be .357 Magnum ammo. It wasn’t.

Ah, you say, but he didn’t call his statement a “warranty,” or give me a pretty little card that says “30-day warranty,” blah blah blah, so his statement must not really have been a warranty, right? Um … no. That’s where subsection (2) comes in:

It is not necessary to the creation of an express warranty that the seller use formal words such as “warrant” or “guarantee” or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller’s opinion or commendation of the goods does not create a warranty.

I’d almost like to sue Wal-Mart just to see if they had the chutzpah to say that their clerk was merely stating a personal opinion that this was a box of .357 Magnum rather than .357 Sig or anything else. Alas, it would cost me a lot more than $23.97 to bring a suit like that.

Then, of course, there’s the warranty of fitness for a particular purpose. Apart from asking for .357 Magnum ammo, which should have been enough in itself, I also made it clear to the clerk that the .357 and the .38 ammo I was purchasing were intended for use with the same gun. Every .357 magnum revolver can accept .38 ammo, but AFAIK no gun in existence can accept both .38 and .375 Sig, a caliber used for semiautomatics. So even if I hadn’t made it clear enough which type of .357 ammo I wanted, and had simply left it up to him as a merchant to choose the appropriate caliber for me, NCGS § 25‑2‑315 would still provide that:

Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.

The next section, NCGS § 25‑2‑316, is a little trickier. Generally, Subsection (2) provides that

Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that “There are no warranties which extend beyond the description on the face hereof.”

Note that it doesn’t say that a generic statement about sales being final cancels any warranties whatsoever, including the warranty of fitness for a particular purpose. Rather, it would have to say something more specific to warranties, e.g., that there aren’t any. However, depending on how pervasive Wal-Mart’s “we don’t even warrant that the product is what we told you it is, let alone that it can be used for the purpose you told us about” rule may be in the industry, it is possible that Subsection (3)(c) would cancel out the warranty of fitness anyway:

Notwithstanding subsection … an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade.

“Usage of trade” is legalese for “if everyone acts like pricks in concert, it’s all good.” I seriously hope that the entire industry isn’t as lame as Wal-Mart is in this regard, but perhaps I’ve just gotten lucky everywhere else. Note, however, that this exclusion applies only to implied warranties such as fitness for a purpose, and not to express warranties like the express warranty that the goods will conform to the description that made part of the basis of the bargain as described above.

In other words, either there really is some funky federal “Wal-Mart Asshole Protection Act” to override the Uniform Commercial Code for ammo sales, or Wal-Mart’s policy of refusing to accept returns as a result of their own screw-ups is not just unreasonable, but illegal.

On Sunday, I made the mistake of picking up some ammo at Wal-Mart on the way to the range. The ammo is in a glass cabinet behind the cash register, so I had to rely on the clerk to pick it out for me, so I asked for a large box of .38 range ammo, a smaller box of .357 ammo for the same gun, and a small box of .22 ammo. The clerk grabbed three boxes of ammo that looked right from a distance (and two of them were right), rang them up along with the other items I had in the shopping cart, and sent me on my merry way.

About an hour later, at the range, I pulled out the .357 ammo, only to find that the clerk had given me a box of .357 Sig ammo, which is even shorter than .38. So I set that box aside, and stopped by another Wal-Mart to return it. I was told that ammo sales were generally final, which I said I understood but this case was different since the product I had been given was not in fact the one I had requested to buy. The clerk called a manager to see if they could make an exception, and the manager said yes, but only at the actual store where the ammo was purchased. So I left the store, and called the original store twice from the road, only to get transferred by an operator to nowhere both times.

The next day, Monday, I showed up at the original store with the .357 Sig ammo and my receipt in hand, looking to return it and get either my money back, store credit, or a box of the .357 ammo I thought I had purchased originally. I was told by the clerk and the acting manager that all ammo sales are final, period. Apparently, Wal-Mart managers subscribe to the Ron Paul theory of assholes, which is that if you act like an asshole most of the time, you’re an asshole, but if you consistently act like the same kind of asshole all of the time, you’re principled. I politely explained again that whatever the hell reason that “screw you, pay us” policy may have in general, it does not make sense where the “sale” was in fact a screw-up on their part rather than mine. His response? “Sorry, Charlie,” only he wasn’t really sorry, and my name isn’t really Charlie.

Enjoy your ill-gotten $23.97, Wal-Mart. It’s the last $23.97 you’re getting from me.

UPDATE (9/11): Apparently some people don’t know when to leave bad enough alone. Another assistant manager from the same store just called to harangue me about the complaint I had filed with the corporate office online. At first he acted concerned, asking me to tell him what had happened, etc., so I did. Then he responded by reiterating the “screw you, pay us” policy. He also briefly attempted to blame it on OSHA, claiming that OSHA wouldn’t even let Wal-Mart take back their ammo if they wanted to. I said I seriously doubted that, but knew for a fact that OSHA doesn’t prohibit any company from refunding a customer’s money if they make a mistake. To which he responded that they weren’t required to by law. I said that just because you have a legal right to act like a jerk doesn’t mean you should act like a jerk, and in any event, I’m not a big fan of doing business with jerks. Then he got huffy and told me he didn’t appreciate me being called a jerk just because he hires incompetent clerks who sell me something I didn’t buy and refuses to give me my money back afterward.

UPDATE: 9/13: Compare and contrast.

Via Instapundit, the New York Times has an article on the the high cost of a “free credit report” from FreeCreditReport.conm. This site is not to be confused with AnnualCreditReport.com, the one site where you really can get a free credit report. Except that it is to be confused with that site. That’s the whole point of calling the not-so-free site “FreeCreditReport.com.”

Now, I’m sure some of you armchair lawyers (and maybe even one or two real ones) will come back and say “But Xrlq, the statement is true, at least technically. You can get a free credit report from FreeCreditReport.con … er, I mean, com. All you have to do is sign up for a worthless service no one in his right mind would want, wait until your ‘free’ credit report arrives, and then call an AOL-esque ‘you don’t really want to cancel this valuable service, do you?’ maze to finally cancel the worthless service you never wanted in the first place, all to obtain a credit report you really could have gotten free from the site they hoped you’d confuse them with.” To which I say hogwash. Having to go through the trouble of canceling a service you never wanted in the first place is a cost, and correspondingly, a huge value to Experian for running the scam. That’s why they do it. The whole point of FreeCreditReport.con is to give away credit reports that are not free, while trusting that a significant portion of their victims will end up shelling out real dollars in the end. In other words, for those of us dinosaurs old enough to remember Joe Isuzu, the entire business model of FreeCreditReport.con is Joe Isuzu, minus the funny. [OK, maybe you think a Yugo, a pirate suit and a series of annoying songs are "funny," but that's beside the point. There's nothing humorous about calling a service "free" when it isn't, especially when done to con people out of using the site where they really could get that same service for free.]

Ah, you say, but the fact that you have to sign up for this not-free service is buried in the mice-print somewhere, so at worst, that makes the ad merely misleading and not, strictly speaking, false. Surely there’s no law against that, right? Wrong. 15 U.S.C. 55(a) defines a “false advertisement” as:

an advertisement, other than labeling, which is misleading in a material respect; and in determining whether any advertisement is misleading, there shall be taken into account (among other things) not only representations made or suggested by statement, word, design, device, sound, or any combination thereof, but also the extent to which the advertisement fails to reveal facts material in the light of such representations or material with respect to consequences which may result from the use of the commodity to which the advertisement relates under the conditions prescribed in said advertisement, or under such conditions as are customary or usual. No advertisement of a drug shall be deemed to be false if it is disseminated only to members of the medical profession, contains no false representation of a material fact, and includes, or is accompanied in each instance by truthful disclosure of, the formula showing quantitatively each ingredient of such drug.
[Emphasis added.]

Note that the basic rule of false advertising is that the statements made be misleading, not that they be false. Nearly everything Joe Isuzu said in the advertisements (including his name) was false, but the ads were not “false advertisements” because they were obvious jokes, not statements likely to mislead anyone with a high enough IQ to be able to afford an Isuzu. The only situation in which literal falsehood is even relevant to the analysis is the limited exception for drug advertisements, and then only when they are disseminated only to members of the medical profession and certain other stated criteria are met. In any other situation, even if one were to take the position that an ad like this

Call now for three free ounces of cocaine!!!!!!

Offer void were prohibited by law.

is technically “true,” it would clearly be a false advertisement for purposes of federal law. And so too is an ad for “free credit reports” coupled with a mice-print disclaimer to the effect that the product they are actually selling is neither a credit report, nor free.

As a conservative, liberatarian-leaning Republican, I’m generally among the last to scream “their oughta be a law” about anything. But in cases like this, where the fraudulent intent is clear, and where there already is a law, a little enforcement might be worth considering. And yes, that goes for you, too, Apple. Do you really think anyone would “buy” those things if you disclosed the fact that you are retaining ultimate control over a product they thought they had just bought and therefore was now their property rather than yours?