Lemon law Verdict for Howard Gutman Kia Repurchase

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.

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About Us

About Us


Hiring an attorney can be a stressful and confusing situation. You want an expert, honest, personal approach to your case. The Law Office of Howard Gutman has been fighting for consumer rights and representing commercial interests for over 20 years. We have a deep knowledge of fraud, consumer, warranty, and lemon law, and will handle your case with honesty and experience.

Howard A. Gutman has successfully handled over 500 lemon law and automobile breach of warranty cases. Mr. Gutman is the author of a leading article on the lemon law in the New Jersey Law Journal and recently gave a seminar for other attorneys on the lemon law for the New Jersey Institute of Continuing Legal Education. He also wrote the Year 2000 Legal Handbook, a book dealing with computer warranties, and is considered a leading authority on all types of warranties. He has appeared on Good Day New Jersey been interviewed by NBC Nightly News and Newsday, and his cases have been profiled in the Star-Ledger, Bureau of National Affairs Magazine, and New York Times

Education and Early Employment

     Howard Gutman

Mr. Gutman graduated from Drew University Cum Laude, with Distinguished Honors in Political Science. At age 20, while still an undergraduate, he became one of the youngest persons ever to publish a law review article. He went on to the University of Michigan Law School, where he served as a Senior Editor on the Journal of Law Reform.

Mr. Gutman first worked at the Wall Street law firm of Haight Gardner Poor & Havens, a premier international law firm. He then went on to Hellring Lindeman Goldstein & Siegel where he worked under the former United States Attorney for New Jersey. Thereafter, he became part of the commercial litigation team at Hannoch Weisman, then the second largest firm in New Jersey. With the opportunity to handle a case featured in national media, he started his own firm and has been a trial attorney for over 20 years. Legal Assistant Amy Schneider is a graduate of Princeton University and MIT.

Published Lemon Law Verdicts and Awards

Black v. Volvo North America Corp. 92 N.J.A.R.2d (1992)

Boyle v. American Isuzu Motors, 95 N.J.A.R.2d 128 (1995)

Gantt v. Volkswagen, 95 N.J.A.R.2d 32
This case sets down the important principle that the manufacturer is responsible for any items installed. The dealer installed an alarm which Volkswagen said was unauthorized. Accepting our position, the Court said if the vehicle malfunctioned, it would be a lemon.

Giglio v. Daimler Chrysler Motors Co, OAL DKT. NO. CMA9965-02
Courts have decided water leak claims in different ways – sometimes saying conditions did not constitute a substantial impairment. Here we were able to demonstrate through an expert and the client’s testimony that there was a substantial problem and secured a refund.

Merisier v. C&J Auto, Inc. OAL-DKT NO . CMA-5617-00
The Division Director, on Administrative Appeal, reversed a lower court finding and ordered repurchase.

Taylor v. Volvo OAL DKT. NO: CMA5732-00
The court ordered a refund based upon a vehicle odor, rejecting contentions the condition did not constitute a substantial impairment.

Umbach v. Volkswagen of American 93 N.J.A.R.2d 11 (1992)
Repurchase ordered, rejecting the contention that uneven shifting at highway speeds was a normal characteristic of the vehicle

Other Verdicts and Settlements

Negligence Settlement ($500,000). A client came to a large law firm who advised him that he did not have a claim in a matter involving medical negligence. We reexamined the case, identified an error and after filing a claim, secured a ½ million dollar settlement.

Consumer Fraud Award ($121,000). Mr. Gutman secured one of the largest jury verdicts in a consumer fraud action after a seven-day trial. The matter was resolved with a confidentiality provision

Consumer Fraud Settlement ($150,000). A tenant was deceived about the projected use of a building. After being billed a five-figure amount by his initial counsel, our office agreed to handle the matter on a contingency basis securing a substantial settlement providing an award to the client and coverage of fees for our office and his prior counsel.

Silica Claim (six-figure settlement involving multiple defendants). Our office filed one of the first cases involving exposure to silica dust.

Media Coverage

Some of our cases have been covered by media outlets including the New York Times, NBC, Star Ledge, Law 360, and the Associated Press.

Jeep Cherokee Litigation (Cal. And NJ) (Our office was lead counsel in a matter covered by Law360

In Re Vioxx Litigation, (D. N.J. 2017) (our office represented a law firm securing a successful resolution of claims).

Lieberman v. USCF, Suit Seeks to Bar U.S. From Chess Olympiad,
New York Times and AP (Sept. 26, 1986)

Pipolo v. Tayburn (filing of one of the first cases alleging repressed memory in case of abuse).

Presentations

New Lemon Law Creates Expansive Remedies,
Winning the Lemon Law Case, Inst. Of Cont Legal Education (Oct. 2016)
Computer Software Warranties and Risks, Presentation to the National Press Club (1998).

Personal Handling and Staff

Each case is personally handled by Mr. Gutman with aid from legal assistant Amy Schneider. She is a graduate of Princeton University who received her M.B.A from MIT Sloan School of Business.

Free Consultation

The office provides a free telephone consultation.