NEW JERSEY LAND-ROVER LEMON LAW DECISIONS

     Land Rover lemon law decisions have gone both ways.  Two cases in the Lemon Law Unit were decided against the consumers.  Some lessons from these claims:

    1) only very strong cases should be filed in the Lemon law unit.  The judges will strictly enforce the requirement that there be a substantial impairment of use, value, or safety.  Having three repairs for the same problem is not enough.  The petitioners below may have been off filing the claims in court.

    2) consider an expert to rebut the frequently persuasive claims of manufacturers.  In the cases below, the LandRover owners were overmatched. 

A. 2002 Land Rover Lemon Law Decisions 

OAL DKT. NO. CMA2069-03

ALI GUVEN,
Petitioner,

v.

LAND ROVER NORTH AMERICA, INC.,
Respondent.

Ali Guven, petitioner, pro se
Megan C. Pear, for respondent (Dobis & Reilly, P.C., attorneys)
Record Closed: May 21, 2003 Decided: June 3, 2003

BEFORE ANA C. VISCOMI, ALJ:

STATEMENT OF THE CASE AND PROCEDURAL HISTORY

Petitioner, Ali Guven, alleges his vehicle, a 2002 Land Rover Freelander, has a non-conformity that is a defect that substantially impairs the use, value or safety of the vehicle and he demands relief pursuant to the Lemon Law, N.J.S.A. 56:12-29 to -49. On March 14, 2003, the New Jersey Division of Consumer Affairs of the Department of Law and Public Safety accepted the petitioner's Lemon Law Dispute Resolution Application and the matter was transmitted to the Office of Administrative Law (OAL) on March 28, 2003 for a hearing as a contested case pursuant to N.J.S.A. 52: 14B-2(b). The matter was scheduled for a hearing on April 16, 2003 at which time it was adjourned in order to allow petitioner sufficient time in order to retain legal counsel and in order to accommodate his work schedule. Petitioner had appeared on April 16, 2003 under the impression that the Attorney General's office would enter an appearance on his behalf. In addition, petitioner indicated he wished to subpoena a current and former employee of Princeton Land Rover. Respondent's counsel agreed to produce those individuals without the necessity of subpoena. In accordance with petitioner's availability, the matter was rescheduled for a hearing for May 21, 2003. At the rescheduled hearing date, petitioner appeared without counsel and indicated he wished to proceed on his own behalf. However, he produced a letter directed to Mercer County Department of Consumer Affairs which basically reiterated the contents of his letter to the Department of Public Law and Safety, Division of Consumer Affairs. Petitioner indicated it was his belief that a Mercer County employee responsible for road testing vehicles in New Jersey would appear on his behalf and testify with regard to the problems with the 2002 Land Rover Freelander. It should be noted that the letter directed to Mercer County Consumer Affairs Department did not request that anyone appear on his behalf at the hearing scheduled before the OAL As such, petitioner was advised this hearing would go forward on that date as scheduled. The matter was heard and the record closed.

FACTUAL DISCUSSION

Based on the testimony and documentary evidence provided at the hearing, I find the following to be the relevant facts in this case.
Petitioner Guven purchased a 2002 Land Rover Freelander on June 11, 2002 from Land Rover Princeton in Princeton, New Jersey. Petitioner asserts two problems with his vehicle: the opening of the back window while traveling on the highway creates a loud enough noise that it has affected his health and, the placing of his foot on the accelerator at speeds greater than 65 miles per hour creates a noise which he believes to be a transmission problem.
Petitioner testified his problems with the Land Rover Freelander commenced the second week after he took delivery of the vehicle. Although he testified with regard to a problem with the CD player and the seatbelt light on the dashboard that stays on, his Lemon Law Application did not indicate these problems but rather stressed a noise that he hears when he opens the back windows while traveling on the highway and a noise he attributes to a transmission problem which is experienced when driving at a speed greater than 65 miles per hour. Petitioner contends, as a result of these problems, his health gets worse everyday. He testified he has to see the doctor on a weekly basis for his headaches. Because of his sinus problems which were corrected by surgery, he prefers to travel with the window open but is now forced to turn on the air conditioning instead so he does not hear the noise from the open windows. He testified he receives weekly injections to relieve his headaches. On cross-examination he testified he is the primary driver of the vehicle and that in the approximate 11 months he has had the vehicle, he has driven approximately 20,000 miles. He has driven the Freelander to Washington, D.C., Maryland, Connecticut and to JFK Airport in New York on many occasions. He drives the vehicle approximately five to six times per week.

Petitioner first returned his vehicle to the dealer on July 23, 2002. The invoice for that repair does not indicate the vehicle was returned for the problems complained of in the Lemon Law Application. Petitioner testified that the handwritten note of "noise" on the first page of that invoice was handwritten by himself after receiving the invoice back from the dealer. He testified that he asked the technician to write that he had complained of the noise but that the technician refused the request. He then returned the vehicle on September 19, 2002. None of the problems complained of as part of petitioner's Lemon Law Application were the subject of this return of the vehicle to the dealership. He next returned the vehicle to the dealership on July 1, 2002. (R-2) On that occasion, he complained of a vibration and noise at highway speeds. The technician noted he "heard whining noise from rear differential on acceleration. Very slight. Tried three other vehicles and all had same noise. Symptom is normal for this vehicle." In addition, petitioner complained of "loud howling noise when one of the rear windows is open while driving." The technician at that time noted the vehicle was test-driven to duplicate the noise. His further comments indicated "by opening one rear window, it creates a vacuum and howling noise. To avoid the noise, the front window needs to be cracked open. This is a normal condition for the vehicle." In addition, on May 19, 2003 petitioner took his vehicle to a Land Rover dealership in Woodbridge (R-3). Petitioner initially testified he took the car in for an oil change and told them of the problems he had complained of but as the dealership technicians did not have time to test-drive the vehicle with him, they did not investigate the complaint. When shown the invoice for that visit to the Land Rover in Woodbridge, petitioner then indicated that because the vehicle was only driven at 55 miles per hour, the noise could not be duplicated.

Petitioner called David Scheknayder, to testify on his behalf. This witness was previously employed with Land Rover, Princeton. Scheknayder testified he did indicate to the petitioner that if he wanted, the transmission could be changed but as it was making a normal gear noise characteristic of the vehicle, any new transmission would produce the same noise. Petitioner also called Princeton Land Rover Technician Anastasios Alexiadis to testify on his behalf. Alexiadis testified that when he test-drove the vehicle with petitioner, he did state he heard the noise petitioner complained of but also indicated to him that he needed to test-drive other Land Rover Freelanders. Alexiadis indicated he test-drove two other Freelanders at that time and they all made that same window noise which he characterized as loud. But he indicated this was characteristic of all of the Freelanders. He also testified he did hear the "humming" noise from the transmission which he characterized as a slight hum and this was also characteristic for that vehicle. Since then, as shop foreman, he has driven "hundreds" of vehicles and all of them have this same characteristic hum.

Prior to being promoted to shop foreman he was a technician for 15 years including five years with Land Rover cars. His duties as technician included troubleshooting problems and quality control. On the day he test-drove Mr. Guven's Freelander with him, they drove up and down the highway. He does not deny the noise complained of by petitioner but it is characteristic of all Land Rovers. He is certified through Land Rover for transmission and transfer box problems.
Paul Malinchak, Land Rover North America After Sales Manager, testified as an expert on behalf of respondent. He has worked with Land Rover for one year and prior to that, worked with Jaguar for five years. He holds an Associate's Degree in Automotive Technology and is also a Master Automotive Service Excellence Certificate (ASE) Technician.

He testified he drives Freelanders on a daily basis. On the first date by which this hearing was scheduled, April 16, 2003, he test-drove petitioner's Freelander. Petitioner was with him for that 15 - 20 mile test drive. He was able to verify both the window and transmission noise complained of by petitioner. His conclusion with regard to the rear window noise that is created by lowering both windows approximately an inch and a half or two such as petitioner indicates that he does, is that this is a normal condition for most cars. When either front window is then released a little bit, the noise will go away. This noise does not reflect a defect with the vehicle. He characterized the noise as the same type that would be created on most vehicles that have a sunroof. If the sunroof is opened in its entirety without opening another window slightly, the same type of noise would be produced. He also testified he verified the transmission noise complained of by petitioner while driving approximately 70 miles per hour and at higher speeds. He characterized this as a slight gear noise which should be expected from an all-wheel drive vehicle. He also testified this gear noise is characteristic of the vehicle.

Malinchak also testified with regard to the test drive taken on the eventual date of the hearing in which petitioner, respondent's counsel, Mr. Malinchak and myself were present. He testified that this was an approximate 20-mile drive and the same noises complained of with regard to the window on the April 16, 2003 test drive were present. He testified this is not an indication of a defect. Similarly, the transmission noise complained of and verified on April 16, 2003 was also present during this test drive at speeds of 70 miles per hour. This is a normal gear noise created by the meshing of the gears which is not a defect of the vehicle according to Malinchak. He also testified he had obtained the May 19, 2003 invoice from Land Rover, Woodbridge. In addition, he also spoke with technicians at Princeton Land Rover who told him the noise complained of by Mr. Guven is similar to the noises of other Freelanders. His opinion within a reasonable degree of professional certainty is that the normal noises heard while driving the vehicle by opening the windows and at 70 miles per hour are not a defect that substantially impair the use value or safety of the vehicle.


LEGAL ANALYSIS

The Lemon Law Act extends a manufacturer's duties such that, subject to certain conditions and within a specified period, a manufacturer is required to correct nonconformities in new motor vehicles, i.e. defects originally covered under the manufacturer's warranty that substantially impairs the use, value or safety of the motor vehicle. N.J.S.A. 56:12-29 et seq. If a consumer reports a nonconformity to the manufacturer or its dealer during the first 18,000 miles of a vehicle's operation or during the two years following the date of original delivery to the consumer, whichever is earlier, the manufacturer shall make or arrange with its dealer to make, within a reasonable time, all repairs necessary to correct the nonconformity. N.J.S.A. 56: 12-31. If, during the period established by the Lemon Law, the manufacturer or dealer is unable to repair or correct the nonconformity within a reasonable time, the manufacturer shall accept the return of the vehicle and refund to the consumer the purchase price, subject to a reasonable allowance for the consumer's use of the vehicle. The consumer bears the burden of proof, by the preponderance of the credible evidence, to establish that the nonconformity continues to exist despite repair attempts by the manufacturer, and that the nonconformity substantially impairs the use, value or safety of the vehicle. N.J.S.A. 56:12-32.

Whether or not there exists a substantial impairment must be measured by an "objective" factual evaluation rather than upon a subjective test of whether the buyer believed the value was substantially impaired." Herbstman v Eastman Kodak Company, 68 NJ 19 (1975). While the facts must be examined from the personal viewpoint and circumstances of the buyer, the test is "what a reasonable person in the buyer's position would have believed." GMAC v. Jankowitz , 216 NJ Super, 313, 335 (App. Div. 1987). An important factor is whether the nonconformity "shakes the buyer's confidence in the goods." Id., at 338.

Based on all the foregoing, I FIND petitioner has not met the burden of proof by a preponderance of the credible evidence and is not entitled to relief pursuant to N.J.S.A. 56:12-19 et seq. The noise complained of by the petitioner both in opening the rear windows on the highway as well as the noise in the transmission while accelerating at speeds of higher than 65 miles per hour are normal noises to be expected. These noises are not loud to the degree complained of by petitioner. I found the testimony of petitioner's witnesses who included former Land Rover technician Scheknayder and shop foreman Alexiadis to have been credible. While I agree with the petitioner that a noise is created upon opening the rear windows while driving on the highway and that there is a noise when accelerating over 65 miles per hour, I FIND these are not defects which substantially impair the vehicle's use, value or safety. If these noises were of such degree that they affected petitioner's health, I would doubt he would drive the vehicle five to six days per week for approximately 20,000 miles on the vehicle in less than a year. I would recommend petitioner consider observing the state speed limit laws. Accordingly, petitioner is not entitled to relief.


DECISION AND ORDER

Based on the foregoing, petitioner's appeal pursuant to the Lemon Law Act at N.J.S.A. 56:12-29 to -49 is hereby DENIED and this matter is DISMISSED. I hereby FILE my initial decision with the DIRECTOR OF THE DIVISION OF CONSUMER AFFAIRS for consideration.

OAL DKT. NO. CMA7975-02
ANANT PATEL,

Petitioner,

v.

LAND ROVER NORTH AMERICA, INC.

Respondent.
________________________________


Anant Patel, petitioner, pro se
Megan Pear, Esq., for respondent (Dobis & Reilly, attorneys)
Record Closed: October 10, 2002 Decided: October 21, 2002


BEFORE BARRY N. FRANK, ALJ:

procedural history and testimony


Anant Patel filed an application for the Lemon Law dispute resolution with the New Jersey Division of Consumer Affairs on or about September 9, 2002, seeking relief from the respondent under the provisions of the New Jersey Lemon Law, N.J.S.A. 56:12-29 to-49. His application was accepted on September 13, 2002 and subsequently transferred to the Office of Administrative Law as a contested matter pursuant to N.J.S.A. 52:14B-1 to -15 and N.J.S.A. 52:14F-1 to -13. This matter was then set down for a scheduled hearing date by the Office of Administrative Law on October 10, 2002. The hearing was heard on the scheduled date of October 10, 2002, during the course of which all testimony was given and received and the hearing record was closed on that date.

Anant Patel, pro se, provided testimony on his own behalf as petitioner.


Mr. Patel testified that he purchased a 2002 Land Rover vehicle on May 24, 2002 from Land Rover of Parsippany. Mr. Patel further testified that from the first day of receiving delivery and driving the vehicle certain problems came to light. The initial problem was that the central locking system of the vehicle did not work with his key from the day he took delivery of the vehicle. He brought the vehicle back for this problem on June 6, 2002 and the dealership advised him that he would have to order parts. He was told this once again on June 13, 2002. Apparently, according to Mr. Patel's testimony, the parts finally arrived after bringing the vehicle back to the dealership several times on September 23, 2002 and were installed in the vehicle on September 26, 2002. Mr. Patel, according to his testimony, advised that the door locks have been working fine since that date. In addition, Mr. Patel brought to the forefront two other problems with the vehicle, one was the finding of six loose screws in the passenger compartment on numerous occasions since the purchase of the vehicle, a non-working VID code for the radio since the purchase of the vehicle and a loose driver's door molding which exists since the purchase of the vehicle. With regard to these items, Mr. Patel gave testimony to the effect that the loose door molding on the driver's side of the vehicle was repaired on September 26, 2002 and that he has not found a loose screw in the vehicle for at least the past month or so.

With regard to the VID code problem with the radio, Mr. Patel testified that the radio does and always has worked properly but that he has not been able to install the security code in the radio in accordance with the vehicle's instruction manual. In summary, Mr. Patel indicated annoyance at having to bring the vehicle in seven times since he purchased the vehicle in May 2002 as opposed to having supposedly only bringing it in once for appropriate servicing and he further testified that the vehicle is operating perfectly on this date in all respects. He further testified that the vehicle has approximately 4,815 miles and has a five year 50,000 mile warranty.
On cross-examination, Mr. Patel again admitted the vehicle was operating properly. He admitted that the vehicle's doors could be locked and unlocked at all times with the remote control device and he further testified that the vehicle had never been left overnight and he always got it back the same day he brought it in.
This then ended the petitioner's case.


Respondent, placed on the stand Paul Malinchak who is an after sales market manager for Land Rover of North America. Mr. Malinchak was qualified as an expert witness with regard to automotive technology. Mr. Malinchak further testified as to his qualifications which amongst other things included ASE certification and the status of a master mechanic or technician having worked for Jaguar for a number of years prior to his employment with Land Rover of North America.
Mr. Malinchak testified with regard to the lock system of the vehicle itself and the fact that he drove a similar vehicle. He testified that in his opinion the key to lock and unlock the central locking mechanism of the vehicle did not in any way, shape, manner or form impair the use, safety or value of the vehicle. He gave similar testimony with regard to VID code on the radio and the panel on the rear of the vehicle. The only testimony he gave with regard to a potential problem with the lock if the key did not operate was if that the locking mechanism was put in the super lock position, the remote control would be needed to unlock the vehicle if someone were inside. The key would be needed similarly to unlock the vehicle if it were in what is called the super lock position. Apparently, the internal or interior locking mechanism of the vehicle would not operate if it was placed in super lock.

Super lock apparently is a setting where if you quickly press twice the lock button of the remote control the vehicle is securely locked down to prevent theft. This apparently is very popular in Europe according to Mr. Malinchak but is something that is very infrequently used in the United States and must be activated with the remote control or keyless locking and entry device. Mr. Patel cross examined Mr. Malinchak and received an admission from Mr. Malinchak that there could be difficulty unlocking the vehicle if the key did not operate, if it was in super lock but with the remote control operable there was a non-problem in this regard.
After hearing the testimony, I must note that while petitioner expressed annoyance at having to bring the vehicle back seven times for the problems set forth in Lemon Law Petition and testified to by petitioner, petitioner did readily admit that he was able to drive the vehicle, that he liked the vehicle and that he did not appear to feel the vehicle was unsafe or dangerous with regard to its operation. He did express concern over the operation or non-availability of the key locking mechanism but he further testified that that has been repaired and is fully operational.

Respondent's expert testified quite credibly that in his opinion none of the alleged defects or problems complained of by the petitioner went to the use, safety or value of the vehicle and that none consisted of the type of substantial non-conformity that the Lemon Law statute was meant to protect the consumer against and provide appropriate relief on behalf of consumer. Petitioner's annoyance with regard to the problems complained of pertaining to said vehicle while perhaps irritating to the petitioner do not necessarily bring the alleged problems to the standards required by the Lemon Law statute. In fact, as I pointed out several times previously, petitioner admits that the vehicle is now operating perfectly and all items that he advised were in disrepair were now functioning properly with the exception of the VID code of the radio which is merely a security code and would have to be entered in the event the radio was stolen and had been put back in the vehicle. Other than that the vehicle is working perfectly and there essentially appears to be no problem with this vehicle. Mere annoyance of having to bring the vehicle in for repair items or having to wait for parts on a foreign vehicle is not sufficient to bring these problems or the items that at one point in time needed repair within the ambit of the Lemon Law statute. In fact, petitioner provided absolutely no convincing evidence and to the contrary, admitted these problems no longer existed with regard to demonstrating a substantial non-conformity that went to the use, value or safety of the vehicle in question which is at the very heart of the Lemon Law statute.
discussion.   The New Jersey "Lemon Law" N.J.S.A. 56:12-29, et seq. provides relief for a consumer who purchases or leases a vehicle with a non-conformity which the dealer or manufacturer is unable to correct within the time frame set forth by the statute. A "non-conformity" is defined by N.J.S.A. 56:12-30 as a defect or condition which substantially impairs the use, value or safety of a motor vehicle. The Lemon Law further obligates the manufacturer/dealer to make all required repairs once a consumer reports a non-conformity in the motor vehicle to said manufacturer/dealer during the first 18,000 miles of operation or during the period of two years subsequent to date of original delivery of the vehicle. N.J.S.A. 56:12-32 goes on to state that if said manufacturer/dealer is unable to repair or correct the non-conformity pertaining to said motor vehicle within a reasonable time frame, then the consumer is entitled to a refund as set forth in the statute.

The burden of establishing by a preponderance of the credible evidence that the alleged non-conformity in the vehicle is a defect or condition that substantially impairs the use, value or safety of the vehicle rests with the petitioner. See N.J.S.A. 56:12-30. It is clear that petitioner must prove same in order to succeed in a claim under the Lemon Law. See Anastasio v. Mitsubishi Motor Sales of America, Inc., OAL Docket CMA 2100-90 (April 23, 1990). Clearly, substantial impairment with regard to the use of the vehicle is a subjective factor and a subjective opinion set forth by the consumer when describing the condition of the vehicle in question and the complaints with regard to said vehicle by said consumer. Herbstman v. Eastman Kodak Company, 68 N.J. 1 (1975). The mere statement by a petitioner that he was unhappy with having to have brought his vehicle back seven times for problems with said vehicle is not necessarily sufficient to satisfy the Lemon Law. There must be additional objective factual findings and evaluations to bolster this particular feeling or opinion of the consumer that the vehicle falls within Lemon Law statute and these claims must be factually demonstrated by the petitioner in a successful fashion. See Coppeto v. Acura Division of American Honda Motor Company, Inc., CMA 11149-98, Initial Decision (March 2, 1999), adopted by the Director (March 20, 1999).


Mr. Patel's testimony with regard to difficulties he experienced with the vehicle blatantly failed to meet the above-referenced criteria. During the course of his testimony, Mr. Patel admitted that he has always been able to drive the vehicle and that indeed on September 26, 2002 all the alleged defects were corrected. Mr. Patel merely expressed annoyance at having to bring the car back to the dealer seven times for parts that had not yet arrived but, when they did arrive, were promptly installed in the vehicle. Mere annoyance or mere inconvenience with regard to having to wait for parts for a foreign vehicle does not bring any alleged non-conformities necessarily up to the standard mandated by the Lemon Law unless said problems go directly to the use, safety and value of the vehicle. The burden of proof with regard to demonstrating this mandate is the responsibility of petitioner and in this instance was not in any fashion met by this petitioner.

Respondent's expert, on the other hand, presented overwhelming amounts of evidence to the effect that the car was in perfect working order, that every effort was made to address Mr. Patel's concerns and that indeed not only had these concerns been addressed, but that all parts had now been installed in the vehicle and that it was performing flawlessly. In fact, this observation was testified to and confirmed by petitioner himself. findings and order

Based upon the above referenced factors and the testimony described above, I FIND that petitioner has failed to demonstrate by a preponderance of the credible evidence that the vehicle in question has mechanical defects consisting of a non-conformity as defined by N.J.S.A. 56:12-30 which substantially impairs the use, value or safety of a motor vehicle. I FIND that no such defect exists such that meets the standards set forth in the Lemon Law as outlined above and I further FIND that respondent has appropriately addressed each and every one of petitioner's concerns with regard to the operation and safety of the vehicle in question. I specifically FIND that the testimony revealed no defect or condition of the motor vehicle in question which substantially impaired its use, value or safety and, therefore, the standards set forth by the Lemon Law have not been met. I therefore CONCLUDE that the vehicle in question is not a lemon as defined by the Lemon Law statute and I further CONCLUDE that petitioner has failed to demonstrate by a preponderance of the credible evidence that the use, value or safety of the vehicle is in question and therefore I CONCLUDE that petitioner has failed to meet his burden of proof as set forth in the Lemon Law statute.

I therefore, ORDER that the petitioner's complaint under the Lemon Law statute be and is hereby DISMISSED.
I hereby FILE my initial decision with the DIRECTOR OF THE DIVISION OF CONSUMER AFFAIRS for consideration.

Keywords, Land Rover defect, problem, lemon, 2001 Land Rover problem, 2002 LandRover defect, car lemon law, 2003 LandRover Problem, 2004 LandRover defect,Free consultation on Land Rover defects and problems

DO I CONTACT YOU

Law Offices of Howard A. Gutman,
230 Route 206, Building 3, Mount Olive, New Jersey 07836
(973) 598-1980, E-mail Howian@aol.com

New York Office
305 Madison Avenue, Suite 449
New York, New York 10165

FREE INITIAL CONSULTATION  

We offer a free initial telephone consultation to discuss your consumer fraud or lemon law case. Please feel free to call or e-mail our office.