LEMON LAW DECISION FORD FREESYLE BRAKE DRAGGING PROBLEM
DOES NOT MEET LEMON LAW CRITERIA
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
OAL DKT. NO. CMA05173-06
NYLA ALLEN,
Petitioner,
v.
FORD MOTOR COMPANY,
Respondent.
________________________
Nyla Allen, appearing pro se
Megan C. Pear, Esq., for respondent (Dobis, Russell & Peterson, attorneys)
Record Closed: May 16, 2006 Decided: May 23, 2006
BEFORE J. HOWARD SOLOMON, ALJ:
Statement of the case
This case arises under the New Jersey Lemon Law Act, N.J.S.A. 56:12-29 to 49
("Lemon Law") and the implementing regulations of the Division of Consumer
Affairs ("Division"), N.J.A.C. 13:45A-26.1 to 26.15.
Petitioner leased a new vehicle manufactured by respondent which she alleges
suffers from a nonconformity in the nature of a defect, i.e., a "dragging"
sensation, as she refers to it, caused by the braking system while the vehicle
is being operated. Petitioner alleges that this nonconformity substantially
impairs the use, value or safety of the vehicle. Pursuant to the Lemon Law,
petitioner demands the termination of the lease together with a refund of all
amounts paid under and pursuant to the terms of the lease. On April 20, 2006,
this case was received by the Office of Administrative Law ("OAL") as a
contested matter. A hearing was conducted by the undersigned on May 16, 2006, on
which date the record was closed.
FINDINGS OF FACT
On December 13, 2004, petitioner leased a new 2005 Ford Freestyle, VIN
1FZK06175Ga15302, from Liccardi Ford, Inc. ("dealer"), an authorized Ford
dealership in Watchung, New Jersey. At the inception of the lease, the odometer
reading was 60 miles and at the time of the hearing, the reading was 26,120
miles. The vehicle is leased through Ford Motor Credit. Petitioner took delivery
of the vehicle on December 13, 2004. The total cost of the vehicle, which
included sales tax of $841.52 and title, licensing and registration fees of
$359, was $32,392.53. After petitioner paid a deposit of $2,618, her monthly
lease payments thereafter were to be $400 a month. The term of the lease is
thirty-six months.
Since January 2005 through December 2005, petitioner had a number of complaints
of vibrations upon braking, squeaks in the steering wheel column, malfunctioning
of the seat belt indicator light, and a "dragging" effect caused by the brakes
while driving. All of these complaints have been resolved as of this hearing
date with the exception of the "dragging" effect, which was complained of on at
least three occasions when the vehicle had less than 18,000 miles on its
odometer.
Petitioner admits that she can use the vehicle, that the vibration sensation is
gone, no further squeaks are heard from the steering wheel and that the brakes
function normally. She further confirms that all complaints about the vehicle
have been resolved, with the exception of the "dragging" effect.
No witnesses were called by petitioner.
Respondent called as its witness Anthony DiFabio, who has been employed by the
dealer as its service manager since January 2006. Prior thereto, he was employed
for twenty-three years as a service manager at another Ford dealership. He has
been in the automotive business for the past forty years. While DiFabio never
saw petitioner's vehicle prior to the hearing, he did review, and brought with
him, all of the records contained in the dealer's file about her vehicle. On the
hearing date, he had an opportunity to ride in the vehicle, sitting in the rear
seat, and noticed nothing unusual.
Respondent then called Daniel Yurowski as an expert witness. Yurowski has been
employed by respondent for the past five years as a field service engineer whose
duty is to diagnose difficult repairs, train technicians and interact with
various dealerships concerning repairs. His training started at a community
college where he received a degree in automotive technology. Prior to joining
respondent, he worked twelve years at a Ford assembly plant as general foreman
and in other supervisory positions. He became ASE (Automotive Service
Excellence) certified, particularly in the areas of brakes, steering,
electrical, transmissions and heating/air conditioning.
He examined petitioner's vehicle in January 2006 at the dealer about the
"dragging" complaint but could not replicate this effect. He also examined
petitioner's vehicle on the date of the hearing and test drove it in the
presence of petitioner and DiFabio. When he applied the brakes or accelerated
the vehicle, nothing unusual was noted. He opined that, within a reasonable
degree of mechanical certainty, there were no safety, use or value
non-conformities with this vehicle.
LEGAL ANALYSIS AND DISCUSSION
The "Lemon Law" statute, as enacted in the State of New Jersey, recognizes that
the purchase (or lease) of a new motor vehicle is a costly consumer transaction
and that the inability to correct defects in these vehicles creates both ". . .
a major hardship and an unacceptable economic burden on the consumer." N.J.S.A.
56:12-29. The law, therefore, provides that should a consumer report a defect or
condition (defined under N.J.S.A. 56:12-30 as a "nonconformity") to the
manufacturer or its dealer which substantially impairs the use, value or safety
of a motor vehicle during the first 18,000 miles of operation or during the
period of two years following the date of original delivery, whichever is
earlier, then the manufacturer shall be obligated to make all repairs necessary
to correct the defect or condition. N.J.S.A. 56:12-31. If the manufacturer or
its dealer is unable to repair or the correct the nonconformity within a
reasonable time, then the manufacturer shall accept the return of the vehicle,
and reimburse the consumer the purchase price and other costs and expenses
allowed by statute, less a reasonable allowance for the use of the vehicle.
N.J.S.A. 56:12-32(a). Similar remedies also apply to a consumer who leases a
motor vehicle. N.J.S.A 56:12-32(b).
The law creates a statutory presumption in favor of the consumer when the
manufacturer or its dealer is unable to repair the nonconformity within a
reasonable time if, within the first 18,000 miles of operation or within two
years following the date of delivery on the purchase (or lease) of the vehicle,
whichever is earlier: (1) substantially the same nonconformity has been subject
to repair three or more times by the manufacturer or its dealer and the
nonconformity continues to exist; or (2) the motor vehicle is out of service for
repair of the nonconformity for a cumulative total of twenty or more days since
its original delivery to the consumer and the nonconformity continues to exist.
N.J.S.A. 56:12-33. Before the presumption arises, however, the consumer must
serve written notice, by certified mail return receipt requested, upon the
manufacturer, giving the manufacturer one last chance to repair the defect or
condition within ten days following receipt of the notification. N.J.S.A.
56:12-33(b); N.J.A.C. 13:45A-26.5.
If the manufacturer fails to repair such defects or conditions within a
reasonable period of time, the consumer is then entitled to a speedy
administrative remedy. N.J.S.A. 56:12-37. Remedial legislation, such as the
Lemon Law, must be liberally construed "in the light of the mischief to be
corrected and the end to be attained." Illario v. Frawley, 426 F Supp. 1132,
1136 (D.N.J. 1977); Carianni v. Sewenker 38 N.J. Super. 350, 361 (App. Div.,
1955).
It is, however, an affirmative defense that the alleged nonconformity does not
substantially impair the use, value or safety of the motor vehicle, or that the
nonconformity is the result of other factors not caused by the manufacturer or
its dealer. N.J.S.A. 56:12-40. Only defects which rise to the level of
"nonconformities," as defined by statute, will qualify a vehicle for treatment
as a "lemon." Anastasio v. Mitsubishi Motor Sales of America, Inc., OAL DKT. NO.
CMA2100-90 (April 23, 1990).
Relief cannot be awarded if a defect is proven, but such is not demonstrated to
be substantial. There must be proof of uncorrected defects "substantially"
impairing the use, value, or safety of a motor vehicle. N.J.S.A. 56:12-29. A
"nonconformity" is a defect or condition which "substantially" impairs the use,
value, or safety of a motor vehicle. Id. at ยง 30. N.J.A.C. 13:45A-26.2.
Citarella v. Chrysler Motor Company, 93 N.J.A.R.2d (CMA) 53 (Citarella).
Although the determination of whether a defect is substantial is not "purely"
`objective', Berrie v. Toyota Motor Sales, USA, Inc., the consumer's assessments
must ". . . have some basis in objective fact." Flagworth, Inc. v.
Mercedes-Benz, USA, Inc., OAL Dkt. No. CMA57770-03 (August 1, 2003). See also
Herbstman v. Eastman Kodak Company, 68 N.J. 1 (1975); Citarella, supra.
It is the consumer who bears the burden of proof, by a 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.
11A:2-21; N.J.A.C. 4A:2-1.4(a); In re Polk, 90 N.J. 550 (1982); Atkinson v.
Parsekian, 37 N.J. 143 (1962). Precisely what is needed to satisfy the standard
must be decided on a case-by-case basis. The evidence must be such as to lead a
reasonably cautious mind to a given conclusion. Bornstein v. Metropolitan
Bottling Co., 26 N.J. 263 (1958). Preponderance may also be described as the
greater weight of the credible evidence in the case, not necessarily dependent
on the number of witnesses, but having the greater convincing power. State v.
Lewis, 67 N.J. 47 (1975). Credibility, or, more specifically, credible
testimony, in turn, must not only proceed from the mouth of a credible witness,
but it must be credible in itself, as well. Spagnuolo v. Bonnet, 16 N.J. 546,
554-55 (1954).
In this matter, petitioner has not established by a fair preponderance of the
credible evidence how the brake "dragging" effect substantially impairs the use,
safety or value of this vehicle, as is required by law (N.J.S.A. 56:12-31),
because she acknowledges that the brakes function normally and the vehicle's
operation has not been limited as a result thereof, since the vehicle has been
operated in excess of 26,000 miles in a year and one-half. It is not every flaw
in a vehicle which the Lemon Law is designed to remediate. There may be flaws
which can be characterized as annoyances and inconveniences. However, as
annoying as they may be, annoyances and inconveniences do not constitute a
substantial impairment. See Anastasio, supra.
While petitioner attributed the "dragging" sensation to the braking system and
while she brought the vehicle to the dealer on three or more occasions in this
regard, nevertheless, I CONCLUDE that there is nothing in the record to
establish that the "dragging" effect causes a non-conformity which substantially
impairs the use, safety or value of this vehicle. N.J.S.A. 56:12-31. See also
Anastasio, supra.
ORDER
Based upon the foregoing, it is ORDERED that the relief sought by petitioner
under the Lemon Law be and is hereby DENIED.
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, ATTENTION: LEMON LAW UNIT, 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.
________________________________
DATE J. HOWARD SOLOMON, ALJ
Mailed to Division of Consumer Affairs:
DATE OFFICE OF ADMINISTRATIVE LAW
Mailed to Parties:
DATE OFFICE OF ADMINISTRATIVE LAW
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APPENDIX
Witnesses
For Petitioner:
Nyla Allen
For Respondent:
Anthony DiFabio
Daniel Yurowski
Exhibits
For Petitioner:
P-1 Repair order dated January 4, 2005
P-2 Repair order dated June 3, 2005
P-3 Repair order dated August 1, 2005
P-4 Repair order dated September 22, 2005
P-5 Repair order dated October 17, 2005
P-6 Repair form dated December 12, 2005
P-7 Letter of petitioner (no date)
P-8 Repair form dated January 9, 2006
P-9 Repair form dated December 19, 2005
P-10(a &b) Repair form dated January 4, 2005
For Respondent:
R-1 Signature page of Lemon Law Dispute Application
OAL DKT. NO. CMA05173-06