2003 LAND-ROVER LEMON LAW DECISIONS
Land Rovers have been the subject of lemon law and breach of warranty claims. One common claim involves engine failure not covered by warranty. We offer a free consultation regarding Land Rover engine failure. The case below involves a claim under the New Jersey lemon law against Land Rover.
OAL DKT. NO. CMA11525-03
ERIC D. NOWICKI,
Petitioner,
v.
LAND ROVER NORTH AMERICA, INC.,
Respondent.
Lisa Adubato Nesi, Esq. for Petitioner
Megan C. Pear, Esq. for Respondent (Dobis & Reilly, P.C., attorneys)
Record Closed: February 6, 2004 Decided: March 31, 2004
BEFORE SANDRA ANN ROBINSON, ALJ:
STATEMENT OF THE CASE
Eric D. Nowicki (Petitioner) alleges his vehicle, a 2003 Land Rover Discovery,
has a non-conformity that is a defect that substantially impairs the use, value
or safety of the vehicle. More specifically the vehicle's engine does not idle
properly when at a stand still, in park or drive gear. And, the vehicle does not
run as smooth as it did prior to the engine being rebuilt.
PROCEDURAL HISTORY
Petitioner demands relief pursuant to the Lemon Law, N.J.S.A. 56:12-29 to 12-49.
On November 25, 2003, the New Jersey Division of Consumer Affairs of the
Department of Law and Public Safety accepted Petitioner's Lemon Law Dispute
Resolution Application and the matter was transmitted to the Office of
Administrative Law (OAL) on December 9, 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
January 27, 2004. At the close of the hearing the exhibits appearing in the
Appendix were marked. The record remained open until the close of the court day
on February 6, 2004 for the receipt of post hearing documents.
STATEMENT OF THE ISSUES
(1) Does Petitioner's vehicle have nonconformities?
(2) If there are nonconformities, are those nonconformities defects or
conditions, which substantially impair the use, value or safety of a vehicle.
BACKGROUND
a. UNDISPUTED FACTS
The parties agree on the following FACTS:
(1) Petitioner leased on January 21, 2003 a demo 2003 Land Rover Discovery, VIN
No. SALTY14413a774421 from land Rover of Parsippany, New Jersey.
(2) The lease/sales price of the vehicle was $39,495.00, inclusive of sales
taxes $522.91, security deposit $550.00, bank fee $475.00, document fee and
clerical expense and registration fee of $132.00.
(3) When Petitioner took delivery of the vehicle on January 27, 2003 the
odometer reading was 1900 miles.
(4) Petitioner took the vehicle to the dealer for the normal pre-scheduled
mileage maintenance checks.
(5) The odometer reading was 2,145 miles on February 5, 2003 the first date the
vehicle was presented for a repair separate from the normal mileage maintenance
check.
(6) The odometer reading on the date of the hearing (January 27, 2003) was
13,100 miles.
(7) Petitioner alleges that the following two defects exist:
the engine does not idle properly when the vehicle is at a stand still while in
park or drive; the vehicle does not run as smoothly as it did prior to the
engine being rebuilt.
(8) There were no Repair Work Order Invoices pertaining to a defect with idling
or running smoothly, however, there were two Repair Work Order Invoices related
to the engine:
February 5, 2003 in @ 2,145 miles
(37 days) return @ 2,256 miles on March 10, 2003
April 15, 2003 in @ 4,088 miles
(14 days) return @ 4,298 miles on April 28, 2003
On the February date, the engine was rebuilt and a dowel was removed and a hole
drilled to insert a dowel to the proper depth. On the April date,
the star washer on the starter was cleaned since it was slightly loose and
corroded; then an extensive road test was performed.
(9) There were no Repair Work Order Invoices for concerns with the vehicle
not running as smoothly as it did prior to the engine being rebuilt.
(10) Petitioner mailed certified a "Last Chance Letter" on June 9, 2003 to
notify dealer of the claim being filed under the New Jersey Lemon and that the
ten-day period would then commence to repair or correct the defects set forth in
the letter.
(11) On June 16, 2003 Petitioner delivered the vehicle with an odometer reading
of 7,791miles to Respondent for final inspection, as per the demand in the Last
Chance Letter"; a 7,500-mile service check was completed and a windshield leak
was repaired. The odometer read 7,793 miles when the vehicle was returned to
Petitioner.
(12) Petitioner has continued to drive the vehicle and despite allegations of
defects which diminished the use, value and safety, the odometer on the date of
this hearing January 27, 2004 is 13,100 miles.
b. SUMMARY OF TESTIMONY AND FINDINGS
Eric D. Nowicki
Petitioner
Petitioner's lease is in effect for thirty-nine months at a monthly rate of
$522.91 with an annual mileage allowance of 15,000 miles. All lease payments are
current. (Exhibit J-2).
Petitioner's testimony explains the circumstances, which required repair visits
to the dealership on February 5, 2003 and April 15, 2003; and provided a review
of the explanations given to repair personnel for the Repair Work Order
Invoices.
On February 5, 2003, Petitioner was driving from his home in Parsippany, New
Jersey to his place of work in Cranford, New Jersey when he heard a noise under
the vehicle hood which had a "bang and racketing or (clattering) sound"; then
the engine light came on. He telephoned Road Side Service and after two-hours a
flatbed arrived to transport his vehicle from Springfield Avenue in Springfield,
New Jersey to the dealership in Parsippany. He was told that metal was found in
the oil and the engine had to be rebuilt. He operated a loaner vehicle during
the thirty-seven day repair period. The vehicle mileage upon arrival at the
dealership was 2,145 miles and when returned to Petitioner it was 2,256 miles.
(Exhibit J-2).
On April 15, 2003 Petitioner traveled to Asbury Park, New Jersey. After parking
the vehicle he tried to start it and it would not turn over. Road Side Service
was again called, but the vehicle would not start. After three hours, a flatbed
transported the vehicle to a dealership in the Asbury Park area. Petitioner
hired a car service for a cost of $133.00 to bring him home from Asbury Park; he
has received reimbursement. Thereafter, the Parsippany dealership had the
vehicle towed back to Parsippany and provided Petitioner with a loaner vehicle.
Petitioner's vehicle mileage upon arrival at the dealership was 4,088 miles and
when returned to Petitioner it was 4,298 miles. (Exhibit J-3). A new start
washer was installed on the starter and the starter was cleaned since it was
slightly loose and corroded; then an extensive road test was performed.
On June 9, 2003 Petitioner prepared and posted the Last Chance Letter via
Certified Mail Return Receipt Requested. Petitioner complained in the letter of
a leaky front windshield. (Exhibit J-4). The vehicle was given a 7,500-mile
service check and the windshield leak was repaired during the third attempt
repair visit which commenced on June 16, 2003. (Exhibit J-5). Petitioner's
vehicle was returned on June 19, 2003 with a mileage of 7,793 miles.
On October 24, 2003 Petitioner submitted a Lemon Law Dispute Resolution
Application and thereon at Exhibit III described the nature of his complaint to
be the following:
1). the engine does not idle properly when the vehicle is at a stand still while
in park or drive;
2). the vehicle does not run as smoothly as it did prior to the engine being
rebuilt. See (Exhibit J-6).
On the date of filing the Lemon Law Application, the odometer on Petitioner's
vehicle read 11,164 miles. He testified that he filed the complaint because the
engine was throwing off vibrations more often than he had expected. He has
leased the Land Rover because of the four-wheel drive and wanted to use it for
work, travel with clients and for skiing trips. Because of the past problems he
fears the vehicle will break down and thus the reason for not traveling to
Vermont on any ski trips with the vehicle. He initially used the vehicle five
days each week to commute fifty miles round trip to work. He calculated an
average annual mileage for work purposes to be approximately 12,000 miles. After
the engine was rebuilt Petitioner says he only uses the vehicle one or two days
per week to travel to work, but he has driven two or more times to Pennsylvania
and at least four times to New York. He now uses his older vehicle more often;
and his wife does not drive the Land Rover due to safety reasons.
Paul Malinchak Respondent's Expert
Paul Malinchak, (P.M.) Land Rover North America After Sales Manager, testified
as an expert on behalf of Respondent. He has worked with Land Rover for
approximately two years with completion of technical courses designed for Land
Rover only, previously worked with Jaguar for five years on the hot line and
technical investigations, and has been a technician with six dealerships for
eleven years. He holds an Associate's Degree in Automotive Technology and is
also a Master Automotive Service Excellence Certificate (ASE) Technician. He is
certified through Land Rover for transmission and transfer box problems. His
ultimate responsibility is customer satisfaction.
P.M. testified that when an engine ceases it stops turning. He road tested the
vehicle on the date of this hearing, as did the Petitioner. In regard to any
noises: P.M. said he heard a ticking noise and a clicking under the vehicle when
there was acceleration. The noise was from something in the transfer box area.
The operations in the transfer box allow for the classification of the vehicle
as a four-wheel drive. The noise identified by P.M. during the test drive is
typical to this vehicle and characteristic of a Land Rover. In regard to the
idling concern P.M. testified that no idle problem could be duplicated during
the road test on the day of the hearing. There was no whining noise, even at
70mph.
P.M. testified as follows regarding ancillary issues presented by Petitioner:
The water leak was first brought to Respondent's attention upon review of the
Last Chance Letter; and the leak was repaired by the dealership immediately;
Petitioner's vehicle remained at the dealership in February 2003 until the
engine was delivered for installation. The engine was on back order and it took
time to receive it; The alarm resetting is a characteristic of the Land Rover
and holding the unlock button when approaching the vehicle signals for a door
opening, but does not start the vehicle. The concern was not a defect or an
issue in the Last Chance Letter.
The defrost system does not operate when the engine stops. No issue regarding
the defrost was presented by Petitioner in any Repair Work Order Invoice, in the
Last Chance Letter, nor has Petitioner presented the vehicle for any repair to
the defrost system.
Based on the testimony and documentary evidence provided at the hearing, I FIND
the following to be the relevant facts in this case:
1. Petitioner leased a demo 2003 Land Rover Discovery on the date, for the cost
and under conditions, which are undisputed;
2. Petitioner had cause for a repair of his vehicle on three occasions since
delivery of the vehicle on January 27, 2003;
3. Petitioner's vehicle was towed to the dealership on February 5, 2003 and a
rebuilt engine was installed;
4. Petitioner's vehicle was towed to the dealership on April 15, 2003 and the
start washer on the starter was cleaned since it was slightly loose and
corroded; then an extensive road test was performed;
5. Petitioner's vehicle has continued to start after the items on the April 2003
Work Order Invoice was completed;
6. Petitioner's Last Chance Letter sets forth repair concerns which have been
corrected by the dealership, and the completion of the repair jobs have been
substantiated during testimony;
7. Petitioner has been reimbursed for out-of-pocket travel expenses and was
provided alternate transportation during the three dates his vehicle was at the
dealership;
8. Petitioner has not returned to the dealership with engine concerns since
April 15, 2003 and did not present an engine concern on his visit of June 16th
under the Last Chance Letter;
9. Petitioner's Last Chance Letter does not indicate that engine concerns still
exist;
10. Petitioner's testimony is void of statements to indicate that engine
concerns still exist;
11. Petitioner testified and submitted documentation, which indicates only, that
he believes the engine does not idle properly and the vehicle does not run
smoothly;
12. Petitioner has continued to drive the vehicle and the mileage on the date of
this hearing (January 27, 2004) is 13,000 miles; the mileage on the date of
delivery (January 23, 2003) was 1,900 miles. Petitioner's mileage allowance
under the Lease terms of 15,000 miles per year was almost met.
13. Petitioner and the expert technician were unable to duplicate an idle
problem during the test drive on the day of the hearing;
14. Expert technician's testimony about the ticking and clicking under the
vehicle when there was acceleration, to be a noise from the transfer box area
and typical to this vehicle and characteristic of a Land Rover, was credible.
Accepted as fact, is his opinion within a reasonable degree of professional
certainty is that the normal noises heard while driving this vehicle at 70 miles
per hour are not defects 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, it 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 N.J. 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 engine failure was corrected with the
installation of a rebuilt engine and the starter was repaired with a new start
washer installed on the starter and a cleaning since it was slightly loose and
corroded. In regard to the defect issues in Petitioner's Last Chance Letter, the
idling concern and the vehicle not running smoothly, Petitioner could not
provide evidence of such a conditions ever existing or any connection to a
previously repaired engine concern. Therefore, I FIND there are no defects
substantially impairing the vehicle's use, value or safety.
CONCLUSION
I CONCLUDE that the Petitioner has failed to establish by a preponderance of the
evidence that a nonconformity in the Land Rover exists which substantially
impairs the use, safety and value of the vehicle. Accordingly, I FURTHER
CONCLUDE that he is not entitled to relief or a remedy under the Lemon Law.
ORDER
Based on the foregoing, Petitioner's appeal pursuant to the Lemon Law Act at
N.J.S.A. 56:12-29 to 12-49 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.
This recommended decision may be adopted, modified or rejected by the DIRECTOR
OF THE DIVISION OF CONSUMER AFFAIRS, who by law is authorized to make a final
decision in this matter. If the Director of the Division of Consumer Affairs
does not adopt, modify or reject this decision within fifteen (15) days, this
recommended decision shall become a final decision in accordance with N.J.S.A.
56:12-37(b).
Any party may file written exceptions with the DIRECTOR OF THE DIVISION OF
CONSUMER AFFAIRS, PO Box 45027, Newark, New Jersey 07101, marked "Attention:
Exceptions." Exceptions must be received by the Division of Consumer Affairs no
later than eight (8) days from the date on which this recommended decision was
mailed to the parties. Exceptions shall not exceed three (3) pages in length. A
copy of any exceptions must be sent to the judge and to the other parties.
March 31, 2004
DATE Sandra Ann Robinson, ALJ
Mailed to Division of Consumer Affairs:
DATE OFFICE OF ADMINISTRATIVE LAW
Mailed to Parties:
DATE OFFICE OF ADMINISTRATIVE LAW
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WITNESSES
Petitioner:
Eric D. Nowicki
For Respondent:
Paul Malinchak, Market Manager
JOINT EXHIBITS
J-1 Lease Agreement
J-2 Invoice Dated February 5, 2003
J-3 Invoice Dated April 15, 2003
J-4 Last Chance Letter Dated June 9, 2003
J-5 Land Rover Invoice Dated June 16, 2003
J-6 Lemon Law Application Dated October 24, 2003
Keywords, Land Rover defect, problem, lemon, 2001 Land Rover problem, 2002 LandRover defect, 2003 LandRover Problem, 2004 LandRover defect,
HOW DO I CONTACT
Law Offices of Howard A. Gutman,
230 Route 206, Flanders, New Jersey 07836
(973) 598-1980, E-mail Howian@aol.com
New York Office
305 Madison Avenue, Suite 449
New York, New York 10165 (212) 886-4838
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