Description of Case:  The consumer experienced problems with stalling and the manufacturer disputed the claim arguing that a problem had not been shown.  After a trial, the consumer won and a full repurchase was ordered.

STATE OF NEW JERSEY
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
OAL DKT. NO. CMA07702-00
DARWIN and MARIA BARTE,
Petitioner,
v.
KIA MOTORS OF AMERICA, INC.,
Respondent.
___________________________________
Howard Gutman, Esq., for petitioners
Brian McLvaine, Esq., for respondent
(Cabaniss, Conroy & McDonald, LLP)
Record Closed: December 17, 2000 Decided: December 26, 2000
BEFORE R. JACKSON DWYER, ALJ:
STATEMENT OF THE CASE AND PROCEDURAL HISTORY

Petitioners, Darwin and Marie Barte, on February 6, 1999 accepted delivery of a purchased 1998  Kia Sportage, veRespondent, Kia Motors of America, Inc., seeks to dismiss petitioners' complaint based on its affirmative defense that petitioners' vehicle does not stall when it comes to a stop or if it does the complaint does not rise to the level of a substantial nonconformity.

This matter was transmitted to the Office of Administrative Law (OAL) from the Division of Consumer Affairs on August 29, 2000 for hearing pursuant to the Lemon Law, N.J.S.A. 56:13-39 to -49. A hearing was held on December 6, 2000, at the Office of Administrative Law, 185 Washington Street, Newark, New Jersey. The administrative law judge (ALJ) closed the record on December 17, 2000 after he received counsel's affidavit of services.

It was stipulated that James Cookingham is an expert in automobile repair and diagnosis. Cookingham  testified that he inspected petitioners' 1998 Kia Sportage on September 27, 2000 at petitioners' home in Jersey City.    After Cookingham checked the vehicle's statistics, he noticed that the malfunction indicator-check engine light remained on. Cookingham heard a knocking noise coming from the motor lasting about five minutes.
Cookingham used his snap on diagnostic hand scanner to retrieve codes that were logged in the vehicle's computer. Cookingham stated that, if a check engine light is on, it means there is a parameter or parameters detected by the on board diagnostic system that has gone outside (its) design limits.

Cookingham opined that if a check engine light remains on, it will affect the vehicle's value because it indicates to a purchaser that a repair is needed.  A code from a check engine light gives a mechanic only a clue what is wrong with the vehicle.  Cookingham stated that his snap on diagnostic tool is designed to abstract on board codes, and he retrieved code P0101 which indicated that the fuel system was getting too much or too little air. That problem could cause petitioners' vehicle to stall. Moreover, the on board freeze frame turned on at 1394
rpms at a speed of 22 miles, a coolant temperature of 194 degrees Fahrenheit and an engine load percentage of 4.7.   Cookingham stated that petitioners' complaint was consistent with his finding that the check engine light was on and with the code that his snap on tool retrieved when he inspected the vehicle.

Analysis and Conclusions of Law 

N.J.S.A. 56:12-31 obligates manufacturers and dealers to make all necessary repairs if a consumer reports a nonconformity to the manufacturer or its dealer during the first 18,000 miles of operation or during the period of two years following the date of original delivery[.]. The statute defines nonconformity to mean a defect or condition which substantially impairs the use, value or safety of a motor vehicle. N.J.S.A. 56:12-
30. In a commercial context, substantial impairment of the value of an automobile is broadly construed to apply to a nonconformity which shakes the buyer's confidence in the goods. GMAC v. Jankowitz, 216 N.J. Super. 313, 339 (App. Div. 1987). Once the purchasers' faith has been shaken, the vehicle loses not only its real value in their eyes, but becomes an instrument whose integrity is substantially impaired and whose operation is fraught with apprehension. Zabriskie Chevrolet, at 458.

I CONCLUDE that the stalling and loss of power is a nonconformity which substantially impairs the use, safety or value of petitioners' vehicle. It is obvious that a vehicle which stalls suddenly, either coming to a stop or in the middle of traffic, poses a threat to the safety of its occupants as well as other drivers on the highway.

It is ORDERED that Kia Motors of America, Inc. reimburse petitioners in the total amount the parties stipulated in the Lemon Law refund computation (J-2), namely $27,093.95.
It is FURTHER ORDERED that petitioners' counsel be awarded a fee of $2,793.00 for 15.1 hours of work work at the rate of $185 per hour.

CALL (973) 598-1980 FOR A Free Consultation on your Lemon Law Claim