keywords 2004 Nissan Maxima, New Jersey lemon law, defect, problem Maxima, New Jersey lemon law, Nissan lemon law

OAL DKT. NO. CMA7669-06


GEORGE JONES,


Petitioner,


v.


NISSAN NORTH AMERICA, INC.,


Respondent.


______________________________


George Jones, petitioner, pro se
Brian Pantaleo, Esq., for respondent (Cooper, Rose & English, attorneys)

Record Closed: August 7, 2006 Decided: August 9, 2006




BEFORE JESSE H. STRAUSS, ALJ:




STATEMENT OF THE CASE




This case arises under the New Jersey Lemon Law Act, N.J.S.A. 56:12-29 to 49, and corresponding regulations of the Division of Consumer Affairs (Division), N.J.A.C. 13:45A-26.1 to 26.14. Manufacturers of motor vehicles must repair all defects which substantially impair the vehicle's use, value or safety if reported by the customer within the first 18,000 miles of operation or within two years of delivery, whichever is first. If a manufacturer fails to repair such defects within a reasonable time, the customer is entitled to a speedy administrative remedy.



PROCEDURAL HISTORY


By letter dated April 18, 2006, petitioner, George Jones (Jones), notified respondent, Nissan North America, Inc., (Nissan) of a potential claim under the Lemon Law Act regarding the front struts on his vehicle. Nissan acknowledged receipt of this notice. On June 15, 2006 the Division accepted Jones' application for relief. Subsequently, on July 19, 2006, the Division transmitted the matter to the Office of Administrative Law (OAL) for hearing. The undersigned held a hearing on August 7, 2006 at the OAL in Newark, New Jersey. Witnesses and exhibits are listed in the appendix.


FINDINGS OF FACT


Background Facts Regarding Purchase of Vehicle


The background facts are undisputed. Jones purchased a new Nissan Maxima bearing VIN 1N4BA41E44C920439 and took delivery on June 19, 2004 from Lynnes Nissan Subaru, Bloomfield, New Jersey. The total sales price, including title fees, taxes and finance charges, was $28,702.40. Prior to the date of the hearing, Jones had completed all payments with regard to the purchase of the vehicle. At the time of the hearing, the mileage on the vehicle was approximately 8,000 miles.




Struts




Jones' sole complaint related to this petition is that a rattle-type noise can be heard in the front of his vehicle when going over bumps. As a result he has been reluctant to drive the vehicle and he expressed concern about his safety particularly at high speeds. He presented no testimony other than his personal subjective concerns that the condition about which he has repeatedly complained has affected the safety, value or use of the vehicle. No one ever advised him that the noise was indicative of an unsafe condition.




On July 27, 2004, Jones complained of a rattle noise in the front of the vehicle when going over bumps. The dealer replaced the front right strut. Upon making the same complaint on March 15, 2005 with a mileage of 2,469, the dealer found that the front struts had an internal problem, and it replaced the left and right front struts. Jones returned with the same complaint on June 16, 2005. At that time the dealer found that both struts were blown out due to an internal problem and replaced both of the front struts. The service record for that visit indicated that struts would not be replaced in the future because Jones had replaced the original rims with "after-market" rims. Lynnes Nissan and Subaru Service Director Robert Policastro testified that he made this notation upon discovering that Jones had replaced the manufacturer's rims with "after-market" rims and had suggested to Jones that these rims might be causing the strut problem. Jones acknowledged that he had replaced the rims for cosmetic reasons. Upon learning that, because of a difference in weight from the original manufacturer's rims, the wear on the struts could be adversely affected, he remounted his tires on the original rims, which have been used since. However, the rattling noise recurred. Jones again returned with the same complaint on September 13, 2005. The complaint could not be duplicated, and the dealer took no action. When Jones returned on November 1, 2005 with mileage of 4,490, the technician confirmed that the right front strut rod was loose internally and replaced it. Upon an additional visit on February 15, 2006, the technician again diagnosed an internal failure in the front right strut and again replaced it. Jones returned to the dealer on March 29, 2006 with the same complaint. This time neither of two technicians nor Policastro, all of whom test-drove the vehicle, could duplicate the complaint, and no action was taken.




As a result of Jones' last chance letter of April 18, Nissan's Dealer Technical Specialist Carlos Ferreira later that month took the vehicle for a test drive for three to four miles over roads with various types of surfaces including bumpy areas. This is a course routinely used by Lynnes Nissan Subaru to try to duplicate various noise or motion complaints. He could not duplicate the noise complaint, and he found no abnormalities. Ferreira is a certified master technician who had spent 10 years as a repair technician and 14 years as a dealer technical specialist for Nissan where he assists dealers in the diagnoses of problems and the repair of automobiles. He has testified many times in lemon law proceedings. Ferreira qualified as an expert in the diagnoses of automotive problems. He explained that a strut is a self-contained and sealed unit which consists of the combined equivalent of what used be the spring and shock absorber on older vehicles. Its purpose is to create a smoother ride. The unit physically holds up the vehicle above the wheels. When a technician describes a strut as suffering from an internal problem, he is referring to the fact that the strut is a self-contained unit, and something inside that unit has failed. It does not indicate a failure of some other part of the vehicle. Ferreira acknowledged that, prior to late 2005, Nissan had been experiencing a high degree of failures of its struts in the Maxima because a nut was coming loose within the internal unit. A dealer's technician would not have been able to specifically diagnose the problem, since the strut is a sealed unit and the problem was from within. However, the strut was redesigned by Nissan, and it introduced the redesigned strut in late 2005 where the nut could not loosen. Therefore, the dealer installed the upgraded strut in Jones' vehicle on his February 15, 2006 repair visit. As indicated above, neither the dealer's technicians nor the manufacturer's representative on March 29, 2006 and April 26, 2006 could duplicate the rattle-type noise when going over bumps after the dealer had installed the upgraded strut. Ferreira offered an opinion that the struts no longer posed a problem and that certainly no safety issue existed.




Service Director Policastro has been Service Director for 2 years and has 42 years of experience in automotive repairs including for Nissan Maximas. He has been a certified technician for 10 years and has also testified in numerous lemon law proceedings. He qualified as an expert in automotive repairs. He offered an opinion that, at no time did the struts cause a safety problem and that after February 2006 not even a rattling sound problem existed any longer.




Based upon the testimony of the witnesses, I FIND the following facts:




There is no evidence that the vehicle contains a defect which substantially impairs its use. The noise about which Jones has complained has not kept petitioner from driving the vehicle. The noise caused by any defects in the struts has been remedied with the installation of an upgraded and newly-designed strut.
 

There is no evidence that the value of the Nissan Maxima has been diminished.


There is no evidence that the vehicle is unsafe. The noise is unrelated to any substantial functional defect in the vehicle, and the noise has abated as a result of an upgraded strut in February 2006.


LEGAL DISCUSSION AND CONCLUSIONS OF LAW


Based on the foregoing facts and the following applicable law, I CONCLUDE that Jones has failed to meet his burden of proof.




The lease or purchase of a new motor vehicle is a major investment "rationalized by the peace of mind that flows from its dependability and safety." Zabriskie Chevrolet, Inc. v. Smith, 99 N.J. Super 441, 458 (Law Div. 1968). In adopting the New Jersey Lemon Law, the Legislature recognized that the absence of an effective procedure for correcting defects in new vehicles results in "a major hardship and an unacceptable economic burden on the consumer." N.J.S.A. 56:12-29; Berrie v. Toyota Motor Sales, USA, Inc. 267 N.J. Super 152 (App. Div. 1993). See also, Christeles v. Nissan Motor Corp., 305 N.J. Super 222 (App. Div. 1997). Therefore, it devised an expeditious remedy to protect consumers against such financial losses.




Manufacturers and dealers are required to make all necessary repairs "if a consumer reports a nonconformity to the manufacturer or its dealer during the first 18,000 miles of operating or during the period of two years following the date of original delivery[.]" N.J.S.A. 56:12-31. A nonconformity is "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).




Under the Lemon Law's remedial mandate, the manufacturer must refund the purchase price, including any trade-in allowance, together with "any other charges or fees," including sales tax, license and registration fees, finance charges, towing expenses and actual rental expense for a replacement vehicle if the manufacturer and/or the dealer are unable to repair or correct a nonconformity within a reasonable time. N.J.S.A. 56:12-32.




A presumption exists in favor of the consumer that the manufacturer or its dealer has not met its obligation to repair a nonconformity if the vehicle "has been subject to repair three or more times" for substantially the same defect or if the vehicle is out of service by reason of repair "for a cumulative total of 20 or more calendar days." N.J.S.A. 56:12-33(a). To invoke the benefit of this presumption, the consumer must first serve written notice on the manufacturer providing one last chance to make repairs within ten days. N.J.S.A. 56:12-33(b).




The statutory remedies are available only if the consumer meets certain burdens. In this matter, Jones bears the burden of establishing by a preponderance of the credible evidence that a condition or defect exists in his vehicle and such defect or condition is a nonconformity that substantially impairs the use, value or safety of the vehicle. Even if Jones were to establish that there is a defect in his vehicle, he still would not prevail if a substantial impairment of use, value or safety of the vehicle has not been proven. Anastasia v. Mitsubishi Motor Sales of America, Inc., OAL Dkt. CMA 2100-90 (April 23, 1990). Not every subjectively perceived flaw in a motor vehicle will rise to the level of a nonconformity, which qualifies the vehicle for treatment as a "lemon." While the concept of substantial impairment necessarily includes the consumer's subjective assessment of the condition complained of, that assessment must also have some basis in objective fact. Herbstman v. Eastman Kodak Co., 68 N.J. 1, 9 (1975). If the test were otherwise, the trier of fact would be required to adopt, without question, the belief of the consumer who filed a lemon law claim.




Although many lemon law complaints have been brought concerning rattles and other types of noises, in almost all these cases, despite the sincerely held beliefs of the owners (as is the situation here), they did not rise to a level requiring or warranting relief. See, e.g., Faraq v. Pontiac-GMC Division, OAL Dkt. CMA 7686-98 (Oct. 1, 1998); Buchinski v. Ford Motor Company, 96 N.J.A.R. 2d (CMA) 177 (May 17, 1996); Rhodes v. Mercedes Benz of North America, 95 N.J.A.R. 2d (CMA) 140 (April 25, 1995); Vicinanza v. Mitsubishi Motors, 95 N.J.A.R. 2d (CMA) 61 (Sept. 16, 1994).




Ordinarily, one would be concerned where an acknowledged defect, namely an internally loosening strut, kept recurring after being not simply repaired but rather completely replaced. Here, the right strut was replaced on July 27, 2004, March 15, 2005, June 16, 2005, November 1, 2005, and February 15, 2006, a total of five times in less than two years. However, the defect was in the design of a replaceable part which has now been improved. As found, since the installation of the upgraded strut, the noise has not been duplicated in subsequent tests. Additionally, there was not convincing evidence that the sounds from the loose struts, which occurred when going over bumps, were such as to substantially impair the use, value or safety of Jones' vehicle.






Accordingly, for the reasons set forth herein, I CONCLUDE that petitioner Jones' Lemon Law complaint should be DISMISSED.
 

1. Background Facts Regarding Purchase of Vehicle

2. Struts

1. There is no evidence that the vehicle contains a defect which substantially impairs its use. The noise about which Jones has complained has not kept petitioner from driving the vehicle. The noise caused by any defects in the struts has been remedied with the installation of an upgraded and newly-designed strut.

2. There is no evidence that the value of the Nissan Maxima has been diminished.

3. There is no evidence that the vehicle is unsafe. The noise is unrelated to any substantial functional defect in the vehicle, and the noise has abated as a result of an upgraded strut in February 2006.