CHRYSLER LEMON LAW DECISION
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Attached is a lemon law decision by the Office of Administrative Law involving Chrysler.  If you have a defective Chrysler vehicle, you may be entitled to compensation, vehicle exchange, or repurchase.  We provide a free consultation on Chrysler lemon law cases and claims.

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Harris v. Chrysler CMA 8324-04

Pettitioner, Dwayne Harris (hereinafter "Harris"), purchased a new vehicle manufactured by respondent, Daimler Chrysler Motors Company, LLC (hereinafter "Chrysler"). Harris alleges that the vehicle suffers from non-conformities primarily in the nature of engine hesitation upon acceleration. Harris alleges that this non-conformity substantially impairs the use, value, and safety of the vehicle. Pursuant to the Lemon Law, Harris demands remedies, including the refund of amounts paid relative to the vehicle. N.J.S.A. 56:12-29 to -49. Respondent Chrysler denies that Harris has proven his case and alleges that the drivability problems Harris encountered were all the result of contaminated fuel.

PROCEDURAL HISTORY

On September 13, 2004, Harris' Lemon Law Dispute Resolution Application, together with the requisite filing fee, was accepted by the New Jersey Division of Consumer Affairs, Department of Law and Public Safety. The Department transmitted the claim to the Office of Administrative Law (hereinafter "OAL") where, on September 30, 2004, it was filed as a contested case. N.J.S.A. 52:14B-2(b). On September 29, 2004, Chrysler's response to the Lemon Law Dispute Resolution Application was filed in the OAL. The case was heard on October 5, 2004 and October 13, 2004. The record was closed upon the conclusion of the hearing on October 13, 2004.

FACTUAL DISCUSSION

On October 21, 2003, Harris purchased a new model year 2003 Jeep Liberty from the Martin Chrysler dealership (P-1). Harris recalled that approximately one month after he purchased the vehicle, he complained to the service writer at the Martin Chrysler dealership that the engine was caught "hesitating." Harris recalled that this occurred sometime after Thanksgiving, 2003. The service writer informed him that it was the "cold weather" that was responsible. Harris testified that he received no invoice as a result of this initial visit to the Martin dealership.

 

Harris testified that the engine hesitation problem continued and so he sought repair of the hesitation problem as well as a problem he was experiencing with the rear door latch of the vehicle. This time Harris took the vehicle to the Berlin Chrysler Plymouth dealership (P-3). The invoice for that service visit does not mention engine hesitation but rather only addresses the rear door latch problem. Harris explained that he initially took the vehicle to the Martin dealership for the rear door problem and engine hesitation but was told to come back later because the service department was booked. Accordingly, Harris then decided to go to the Berlin Chrysler Plymouth dealership.

Harris described the engine hesitation problem as a "chucking" or "bucking" of the vehicle when the accelerator was pressed. Harris testified that the vehicle acted like it would not go up a hill and that the vehicle would actually hesitate or slowdown when he would attempt to accelerate to, for example, pass another vehicle. Harris explained that it felt like he was "pulling something" behind the vehicle. Harris explained that the situation would "come and go," and that when he first bought the Jeep Liberty, it ran fine.

 

Harris testified that the hesitation problem continued and so he returned the vehicle to the Berlin Chrysler Plymouth dealership on January 3, 2004 with complaints of hesitation, noise in the engine, backfiring, and the "check engine" light staying on (P-6). The dealership was unable to verify the abnormal engine noise and but got the "check engine" light to go out. The invoice further mentions that the #3 cylinder was tested for misfire. The invoice did not mention any customer complaint of engine hesitation. On January 6, 2004, Harris returned to the Berlin Chrysler Plymouth dealership with the same complaints of "check engine" light back on, vehicle backfiring, and hesitation. The dealership determined that the #3 fuel injector was intermittently not firing and spraying fuel. The dealership replaced the #3 fuel injector (P-5). The repair invoice does not specifically mention a customer complaint of engine hesitation.

On January 14, 2004, Harris took his vehicle to a different Chrysler dealership (Lenihan) because he was still experiencing problems with engine hesitation, engine noise, backfiring, and the "check engine" light staying on. The Lenihan dealership cleaned the fuel injectors for the #1 cylinder that was misfiring. The dealership determined that there was an "injector misfire" (P-7). Harris testified that when he picked his vehicle up after this service visit, the vehicle's engine was still hesitating but he was told by the service personnel that the problem was due to the cold weather. Harris stated that the "check engine" light continued to come on and Harris kept calling the dealerships complaining. Additionally, the engine hesitation problem continued on an intermittent basis.

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Harris returned to the Martin dealership on May 5, 2004 and voiced the same complaints of hesitation, backfiring, and the "check engine" light being on. The service department cleaned the fuel injection system (P-8). The dealership's invoice did not specifically mention a customer complaint of engine hesitation.

 

Harris returned his vehicle to the Martin dealership on May 7, 2004, complaining of the same problems. The service invoice notes that Harris complained that the "check engine" light was flashing, the vehicle was backfiring, and the engine had no power (P-9). The service department of the Martin dealership could not verify the customer's complaint.

 

Harris maintains that because the hesitation problem with his vehicle's engine was still not fixed, he made a claim under the Lemon Law on May 15, 2004 (P-10 and P-4). The Certified Mail green card reveals that Harris' Lemon Law claim was received by Chrysler on June 10, 2004 (P-11). Harris testified that no one from Chrysler or any of the Chrysler dealerships contacted him in an effort to schedule a ten-day repair attempt or vehicle inspection. Harris testified that as of the date of the hearing, the vehicle still intermittently hesitates upon acceleration and the engine backfires. Harris maintained that such a condition substantially reduced its value and that no one would want to buy such a vehicle that exhibited these drivability problems. Additionally, Harris stated that the safety of the vehicle was adversely affected because of the hesitation and the resultant inability to rely upon having power when he needed it in traffic.

 

Harris recalled being told by service personnel from the Berlin Chrysler Plymouth dealership that the engine problems he was complaining of were due to the cold weather and that was how Jeeps normally run. Harris did relate his recollection that at one point a Martin dealership service representative suggested that he put a can of gas treatment in the gas tank. Harris complied, but the engine hesitation continued.

 

Chrysler called Mr. Joseph P. O'Donnell to give expert opinion testimony. O'Donnell is employed by Chrysler as a technical advisor and has served in that capacity for the past three years. Before that, O'Donnell has a history of working for Chrysler in various positions since 1978. O'Donnell has various A.S.E. certifications and was permitted by this tribunal to give his opinion in the field of engine repair and engine performance. O'Donnell did concede that he had no personal experience with Jeep Liberties such as the one owned by Harris and he never diagnosed a Jeep Liberty such as Harris' for problems.

 

 

O'Donnell based his opinion on a review of the repair invoices for Harris' vehicle from the various Chrysler dealerships. O'Donnell never personally inspected the engine of Harris' vehicle nor did he run any diagnostic tests. Rather, the first time O'Donnell saw the Harris vehicle was on the second day of the instant hearing (October 13, 2004) when O'Donnell took a test drive. O'Donnell reported that during the test drive, he observed no engine hesitation, backfiring, engine noises, nor was the "check engine" light on. O'Donnell had no explanation why Chrysler did not respond to Harris' ten-day Lemon Law notice (last chance letter).

 

O'Donnell stated that with regard to the January 6, 2004 repair effort, the fuel injector was not working correctly and so it was replaced. Then, as concerns the January 14, 2004 repair order, he felt that the injector was causing a misfire and so the injector for cylinder #1 was cleaned. O'Donnell testified that he felt the problem was "probably" a clog in the injector, as opposed to a problem with the electronics. O'Donnell stated that he "assumed" that the injectors were clogged and he "assumed" that the fuel was dirty. O'Donnell went on to further state that although he did not evaluate Harris' car, he "assumed" the problem was a "winter fuel mix." O'Donnell stated that it was his understanding "generally" that the vapor pressure boiling point is higher in summertime fuel than wintertime fuels. However, O'Donnell did not know what the additives in the fuel were. O'Donnell conceded that he was not a chemist. O'Donnell "assumed" that there was a problem with additives in fuel from New Jersey refineries. O'Donnell testified that he was aware that the fuel in New Jersey in the winter of 2004 had caused fouling or clogging of fuel injectors. O'Donnell testified that he has observed similar problems during that time period on approximately ten occasions with Chrysler products. O'Donnell denied that there were any problems with Chrysler fuel injectors or Chrysler fuel systems. Accordingly, O'Donnell expressed the opinion that fuel contamination was causing the drivability problems complained of by Mr. Harris. O'Donnell testified that it was his opinion that the problem was either due to fuel additives placed in the gasoline at the refinery or some type of (refinery originated) contamination in the fuel. The basis for O'Donnell's opinion was primarily that if the service invoices showed that the injectors were cleaned, then he concluded that the injectors must have been clogged.

 

O'Donnell conceded that Chrysler never issued any service bulletins, directives, warnings, or advisories as concerns alleged contaminated fuel during the winter of 2004. O'Donnell produced no documentation or any other evidence to support the existence or even the claimed existence of contaminated fuel in southern New Jersey during the winter of 2004. Further, O'Donnell did not produce any documentation or other evidence that established or even tended to establish that winter fuel additives supplied by the gasoline refineries caused problems in Chrysler fuel systems and clogged the fuel injectors. O'Donnell also conceded that he was not aware of Chrysler or any of its dealerships performing a test on the fuel in an effort to analyze if the fuel was, in fact, contaminated. Upon questioning by this ALJ on the subject of fuel analysis, O'Donnell appeared nonplused that such a fuel analysis could even be performed.

 

When questioned as to why one individual injector would clog or malfunction if the fuel problem was due to refinery introduced additives, O'Donnell shifted his opinion and testified that he felt the problem in Harris' vehicle was "more likely" fuel contamination. However, O'Donnell was unable to express any opinion as to the nature or source of this alleged fuel contamination. Accordingly, O'Donnell was unable to provide any detail, for example, whether the alleged contamination was dirt, rust, or water. O'Donnell could only opine that "fuel contamination" was the cause of the problem. O'Donnell explained that if the fuel was dirty, all of the injectors would not necessarily become clogged but rather he would expect that the contamination would first manifest in the injector closest to the "fuel rail." O'Donnell conceded that the fuel injector that was replaced (injector #3) was located in the "middle of the fuel rail." O'Donnell conceded that the drivability problems experienced by Harris could be electronic in nature. However, O'Donnell stated that he could "only go with what the dealer said," and the dealer said that "electronics were okay." O'Donnell admitted that his expert opinion (that the problem was due to fuel contamination) was based upon solely the repair orders and what the various Chrysler dealers did to "repair" the vehicle.

 

With regard to the design and configuration of the fuel distribution system in the vehicle, O'Donnell noted that there was no in-line fuel filter in this particular Jeep Liberty model. Rather, there was only a screen that was at the end of the fuel pump located in or near the gas tank. O'Donnell conceded that some Chrysler products had in-line fuel filters, but this particular Jeep Liberty did not. O'Donnell testified that it was his opinion that had the vehicle been designed and manufactured with an in-line fuel filter, the "situation may have been aided." In fact, O'Donnell confessed that he personally suggested that in-line fuel filters be incorporated into the design, but his recommendation was not followed.

 

Although O'Donnell stated that it was his understanding that there was a fuel contamination problem in the South Jersey area during the winter of 2004, O'Donnell testified that he did not believe every Jeep in the area had a problem. It was O'Donnell's testimony that all of the gas in the South Jersey area did not come from the same refinery. Although O'Donnell did not know the number of automobiles sold by the Martin dealership during the relevant time period, O'Donnell testified that he "suspected" that there were "many, many more" such problems than the ten cars that he had involvement with. Notwithstanding the fact O'Donnell claims knowledge of this alleged contaminated fuel problem in South Jersey, as early as February 2004, it appears the Chrysler dealerships visited by Harris had no knowledge whatsoever of the existence of contaminated fuel in the area. As O'Donnell stated, contaminated fuel is not a warranty item and so the dealerships would have charged Harris for the service efforts, had they believed that the genesis of the problem was contaminated fuel.

 

FINDINGS OF FACT

 

I listened intently to the testimony in this case. Essentially, Harris claimed that soon after he purchased his new vehicle, the engine performance exhibited hesitation upon his attempts to accelerate. Harris testified to numerous attempts to have the condition remedied through various Chrysler dealerships. The position of Chrysler, as articulated through its expert witness, Mr. O'Donnell, was that there was no non-conformity or defect in the vehicle, but if there was a problem at one time, the problem was the result of contaminated fuel.

 

Based upon the disparity in the testimony, I FIND that the determination in this matter rests primarily on credibility determinations. As concerns the petitioner, I note that notwithstanding his claim that he complained to the various dealerships of engine hesitation, many of the service invoices do not specifically include such a customer complaint on the invoice printout. Additionally, Harris did concede that the condition complained of occurred on an intermittent basis.

 

When facts are contested, the trier of fact must assess and weigh the credibility of the witnesses for purposes of making factual findings. Credibility is the value that a finder of fact gives to a witness's testimony. It requires an overall assessment of the witness's story in light of its rationality, its internal consistency, and the manner in which it "hangs together" with the other evidence. Carbo v. United States, 314 F.2d 718, 749 (8th Cir. 1963). There is no mechanical formula for determining the truth, to the extent it can be discerned, and many factors may be considered and weighed. These include the demeanor of the witnesses and the manner of testifying, the interest a witness may have in the outcome, and the reasonableness and coherence of the testimony. Dawson v. R.W. Vogel, Inc., CRT 4501-00, Initial Decision (Apr. 25, 2002), adopted as modified, Dir., Div. on Civil Rights (Aug. 28, 2002) <http://lawlibrary.rutgers.edu/oal/search.html>. "Credible testimony" must proceed from the mouth of a credible witness and must be such as our common experience, knowledge, and common observation can accept as probable under the circumstances. State v. Taylor, 38 N.J. Super. 6, 24 (App. Div. 1955); see, also, Gilson v. Gilson, 116 N.J. Eq. 556, 560 (E. & A. 1934). A fact finder is expected to base decisions of credibility on his or her common sense, intuition, or experience. Barnes v. United States, 412 U.S. 837, 93 S. Ct. 2357, 37 L. Ed. 2d 380 (1973). In an administrative proceeding, testimony may be disbelieved, but it may not be disregarded. Middleton Township v. Murdoch, 73 N.J. Super. 511 (App. Div. 1962). A fact finder "is free to weigh the evidence and to reject the testimony of a witness . . . when it is contrary to circumstances given in evidence or contains inherent improbabilities or contradictions which alone are in connection with other circumstances in evidence excite suspicion as to its truth." In re Perrone, 5 N.J. 514, 521-22 (1950); see, also, D'Amato by McPherson v. D'Amato, 305 N.J. Super. 109, 115 (App. Div. 1997). In other words, a trier of fact may reject testimony as "inherently incredible" and may also reject testimony when "it is inconsistent with other testimony or with common experience" or "overborne" by the testimony of other witnesses. Congleton v. Pura-Tex Stone Corp., 53 N.J. Super. 282, 287 (App. Div. 1958). Similarly, "[t]he interest, motive, bias, or prejudice of a witness may affect his credibility and justify the [trier of fact], whose province it is to pass upon the credibility of an interested witness, in disbelieving his testimony." State v. Salimone, 19 N.J. Super. 600, 608 (App. Div.) (citation omitted), certif. denied, 10 N.J. 316 (1952). The choice of rejecting the testimony of a witness, in whole or in part, rests with the trier and finder of the facts and must simply be a reasonable one. Renan Realty Corp. v. State Dep't of Community Affairs, 182 N.J. Super. 415, 421 (App. Div. 1981). The determination of credibility must be made based upon the totality of the evidence, including an assessment of the witnesses by the trial judge who had the opportunity to see and hear the witnesses at trial. See, e.g., In re Final Agency Decision of Bd. of Examiners of Elec. Contractors, 356 N.J. Super. 42 (App. Div. 2002).

 

It is my conclusion that Mr. Harris did provide credible testimony. His testimony about the engine hesitation problems and the ongoing failures of the various dealerships to remedy the condition was unwavering and believable. I observed no instance where Harris' testimony was impeached, or his truthfulness validly challenged. Although the service invoices may not have specifically mirrored his complaint of engine "hesitation," I do note that the service invoices did reflect work on the fuel delivery system, specifically the fuel injectors. Consistent therewith, I note that Harris' Lemon Law Dispute Resolution Application complains of "hesitation." Parenthetically, having had the chance to observe Harris' testimony, it is my conclusion that it is perfectly understandable that Mr. Harris would not have been cognizant of the need to either obtain a dealership service invoice reflecting his consumer complaint or insisting that the service invoice accurately reflected his specific consumer complaint. I am satisfied that it was Harris' intention only to have his vehicle fixed and so his focus was not on creating a paper trail for a later Lemon Law claim. I FIND that Harris was a credible witness and provided believable testimony.

 

Based on the foregoing, I FIND:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CONCLUSIONS OF LAW

 

In its response to Harris' Lemon Law complaint, Chrysler claims that:

 

 

 

 

 

 

In addition, during the hearing Chrysler alleged that any problems experienced by Harris with regard to engine performance or drivability were the sole result of contaminated fuel. In fact, Chrysler argued during the hearing that it properly should not have agreed to do the work it did perform on the vehicle's fuel distribution system at "no charge" to the customer because this work was really not a warranty item due to the alleged existence of contaminated fuel.

 

During the hearing, Chrysler essentially abandoned most of the legal positions espoused in its response to Harris' Lemon Law complaint. Chrysler put on no evidence of customer abuse, neglect, or unauthorized modifications or alterations. Additionally, Chrysler did not attempt to substantiate its claim that Harris did not afford Chrysler the opportunity to repair or correct any defect in the vehicle. To the contrary, Chrysler's only witness was at a loss to explain why Chrysler made no attempt whatsoever to communicate with Harris during the ten-day last-chance Lemon Law period. Additionally, Chrysler did not seek to support its initial legal position that the alleged non-conformities have been corrected within the time period established by the Lemon Law. Rather, it was Chrysler's legal position during the hearing that no non-conformity existed because the problems complained of by Harris were solely the result of contaminated fuel.

 

The Lemon Law is premised by expressed legislative findings that the purchase of a new motor vehicle is a major high-cost consumer transaction and that the absence of an effective procedure for correcting defects in new motor vehicles results in a major hardship and unacceptable economic burden on the consumer. N.J.S.A. 56:12-29. Consequently, the Legislature devised an efficient remedy to protect consumers against such financial losses. N.J.S.A. 56:12-31 obligates manufacturers and dealers to make all necessary repairs if a consumer reports a non-conformity in a motor vehicle 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 consumer's right under the Lemon Law is rooted in the buyer's right to revoke acceptance of a commercial unit whose non-conformity impairs its value to . . . [the buyer] under the Uniform Commercial Code. N.J.S.A. 12A:2-608(1). The Lemon Law defines non-conformity as a defect or condition, which substantially impairs the use, value, or safety of a motor vehicle. N.J.S.A. 56:12-30. Thus, in a commercial context, substantial impairment of the value of an automobile is broadly construed to apply to a non-conformity which shakes the buyer's confidence in the goods. GMAC v. Jankowitz, 216 N.J. Super. 313, 339 (App. Div. 1987).

 

A trivial defect or defects that can be easily corrected will not support a claim for revocation. The product must not function well enough to accomplish the buyer's purpose. Id. at 335. Moreover, in determining whether a substantial impairment exists, courts in New Jersey will examine the facts from the viewpoint of the buyer and his circumstances, but will then apply an objective test of what a reasonable person in buyer's position would have believed. Id. at 335. Thus, while the concept of substantial impairment includes the consumer's subjective assessment of the condition, that assessment must also have some basis of objective fact. Herbstman v. Eastman Kodak Co., 68 N.J. 1, 9 (1975). If the manufacturer or dealer is unable to repair or correct a non-conformity within a reasonable time, 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. N.J.S.A. 56:12-32. As an extra protection for consumers, the Legislature has created a statutory presumption that the manufacturer or its dealer has not met its obligation to repair a non-conformity if the vehicle has been subject to repair three or more times for substantially the same defect and if the vehicle is out of service by reason of repair for a cumulative total of twenty or more calendar days. N.J.S.A. 56:12-33(a)(1). The presumption applies against the manufacturer only if the consumer first serves a written notice on the manufacturer providing one last chance to make repairs within ten days. N.J.S.A. 56:12-33(d). Remedial legislation, like the Lemon Law, must be liberally construed in light of the mischief to be corrected and the end to be attained. Illario v. Frawley, 426 F. Supp. 1132, 1136 (D.M.J. 1977); Carianni v. Schwenker, 38 N.J. Super. 350, 361 (App. Div. 1955).

 

I FIND that the record reflects that Harris complied with the statutory and regulatory procedure requirements under the Lemon Law. Specifically, Harris sought repair of the problem complained of on at least three separate occasions and further appropriately provided Chrysler with the requisite ten-day notice. I FIND that Harris has established the basic facts which entitle him to the presumption that Chrysler was unable to repair or correct the problems complained of within a reasonable time. Harris is entitled to the presumption because of my finding that Chrysler received written notification by Harris via certified mail, return receipt requested, of a potential claim pursuant to the provisions of the Lemon Law. I am satisfied that Chrysler had the opportunity to repair or correct (or at the absolute minimum investigate) the condition within ten calendar days following receipt of the notification and, as set forth in the above Findings of Fact, did not do so. As also set forth above in the Findings of Fact, I FIND that Chrysler did not make any attempt whatsoever to respond upon receipt of the ten-day notice letter. It was not until the ten-day period had elapsed and the parties were actually engaged in the second hearing day before this tribunal that a Chrysler technical representative took the Harris vehicle out for a test drive.

 

As mentioned above, under the Lemon Law, if a consumer discovers a "non-conformity," i.e., "a defect or condition which substantially impairs the use, value or safety of a motor vehicle," the consumer must report it to the manufacturer or dealer within the first 18,000 miles of operation or within two years of the date of delivery, whichever is earlier. N.J.S.A. 56:12-30, -31. The manufacturer is required to make (or arrange with the dealer to make) all repairs necessary to correct the non-conformity within a reasonable time. N.J.S.A. 56:12-31. If the manufacturer is unable to make the requisite repairs or correct the non-conformity within a reasonable time, it must accept the return of the vehicle and refund the purchase price. N.J.S.A. 56:12-32. A manufacturer is presumed to be unable to make the requisite repairs or correct the non-conformity if the vehicle has been subject to repair for at least three times for the same defect, or if the vehicle was out of service due to repairs for twenty or more calendar days. N.J.S.A. 56:12-33(a)(1), (2). The consumer bears the burden of proving a non-conformity that continued to exist despite the manufacturer's repair attempts. Janushevich v. Kia Motors Am., Inc., CMA 9678-98, Initial Decision (Dec. 14, 1998), modified, Dir. (Jan. 4, 1999) <http://lawlibrary.rutgers.edu/oal/search.html>.

 

The threshold issue in a Lemon Law case is whether the vehicle has a defect or defect-like condition. Christelles v. Nissan Motor Corp., USA, 305 N.J. Super. 222, 226 (App. Div. 1997). Resolution of this issue requires, in part, an assessment of the credibility of the consumer. Ibid. While the manufacturer's expert witness is relevant, it is not necessarily dispositive. Id. at 230. A Lemon Law case often turns on evaluations of credibility. See, e.g., Mecca v. Ford Motor Co., 95 N.J.A.R.2d (CMA) 211 (petitioner's apprehension from false door-ajar alarms, chimes, and dome lights was genuine and not unreasonable); Aparicio v. AM Gen. Corp., CMA 1550-98, Initial Decision (Mar. 23, 1998), adopted, Dir. (Apr. 3, 1998) <http://lawlibrary.rutgers.edu/oal/search.html> (expert witness's testimony strained credulity and suggested extreme partisanship). Thus, if a consumer is found to be credible, the consumer's testimony can establish objective facts that may overcome the manufacturer's rebuttal of the presumption. Christelles, supra, 305 N.J. Super. at 228. As set forth in the above Findings of Fact, I have found Mr. Harris to be credible and so am persuaded that Harris' vehicle exhibited long-term, albeit, intermittent, engine hesitation that was never corrected by the manufacturer or any of the manufacturer's dealerships. This "hesitation" manifested primarily when the driver sought to accelerate the vehicle. Specifically, when Harris pressed down on the accelerator pedal, the vehicle would buck or slowdown or hesitate.

 

I FIND that Harris proffered credible testimony and has proven a defect or a defect-like condition. Accordingly, the analysis must proceed to the issue of whether the defect or defect-like condition rises to the level of a "non-conformity" as defined by N.J.S.A. 56:12-30, i.e., whether the defect or condition substantially impairs the use, value, or safety of the motor vehicle. Christelles, supra, 305 N.J. Super. at 226. This is a fundamental determination in a Lemon Law case. Striccholia v. Nissan Motor Corp., CMA 5238-98, Initial Decision (Oct. 20, 1998), modified, Dir. (Nov. 7, 1998) <http://lawlibrary.rutgers.edu/oal/search.html>.

 

Although the issue of substantial impairment is based upon an objective factual evaluation rather than a subjective test of whether the consumer believed the vehicle's utility was substantially impaired, this evaluation is not entirely objective. Berrie v. Toyota Motor Sales, USA, Inc., 267 N.J. Super. 152 (App. Div. 1993); Herbstman v. Eastman Kodak Co., 68 N.J. 1, 9 (1975). In Berrie, supra, the consumer leased a 1991 Toyota Corolla and parked it on a graded driveway on a regular basis. Seven months later, the vehicle stalled and could not be restarted. The dealer attempted to repair it, but the problem was recurring. During a subsequent Lemon Law hearing, a witness for the respondent testified that when the vehicle was parked in an inclined position, the fuel could not gravitate toward the pump, but if the vehicle was parked on a horizontal surface, or if the petitioner maintained more than a half-gallon of fuel in the tank, the problem was rectified. The ALJ found these restrictions were not within the normal usage of a motor vehicle, ruling in favor of the petitioner and expressly rejected the respondent's argument that the vehicle operated within factory standards. See, Berrie v. Toyota Motor Sales, USA, Inc., 92 N.J.A.R.2d (CMA) 117. On appeal, the respondent argued, inter alia, that a consumer must establish a violation of warranty in order to maintain a Lemon Law claim, and that an objective standard should be used to determine whether there is a substantial impairment, not a subjective standard, (i.e., consumer satisfaction). The Appellate Division rejected these arguments finding, inter alia:

 

[E]ven under warranty law whether a defect or nonconformity substantially impairs the use or value of the goods to a buyer is not purely "objective." It may be "personalized in the sense that the facts must be examined from the viewpoint of the buyer and his circumstances, objective in the sense that the criterion is what a reasonable person in the buyer position would have believed."

 

[GMAC v. Jankowitz, 216 N.J. Super. 313, 335, 523 A.2d 695 (App. Div. 1987) (quoting 67A Am.Jur.2d Sales, ? 1203 (1985)).]

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