LINCOLN AVIATOR LEMON SEATING AND LIFT GATE PROBLEMS NEW JERSEY LEMON LAW DECISION
Agency Final Decision door sedan she leased from Holman Lincoln Mercury (“Holman
or Dealer or Dealership”), is a lemon as defined under the Lemon Law. The matter
was transmitted to the Office of Administrative Law (OAL) as a contested case on
February 24, 2005. A hearing was held at OAL offices in Atlantic City, New
Jersey on March 9, 2005. The record closed on March 9, 2005.The material facts
are essentially undisputed. Therefore, the factual statements contained herein
are the FINDINGS OF FACTmade with respect to this matter. "> Link to original
Word document
State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
OAL DKT. NO. CMA800-05
JAN VAN HOLT,
Petitioner,
v.
FORD MOTOR COMPANY,
Respondent.
_________________________________
Jan Van Holt, petitioner pro se
Megan C. Pear, Esq., for respondent, (Dobis, Russell & Peterson, P.C. attorneys)
Record Closed: March 9, 2005 Decided: March 11, 2005
BEFORE W. TODD MILLER, ALJ:
STATEMENT OF THE CASE AND PROCEDURAL HISTORY
Jan Van Holt, ("Petitioner") filed a claim against respondent, Ford Motor
Company, under the terms of the New Jersey Lemon Law, N.J.S.A. 56:12-29 to -49.
Petitioner alleges that her 2 004 Lincoln Aviator 4 door sedan she leased from
Holman Lincoln Mercury ("Holman or Dealer or Dealership"), is a lemon as defined
under the Lemon Law. The matter was transmitted to the Office of Administrative
Law (OAL) as a contested case on February 24, 2005. A hearing was held at OAL
offices in Atlantic City, New Jersey on March 9, 2005. The record closed on
March 9, 2005.
FACTUAL DISCUSSION
The material facts are essentially undisputed. Therefore, the factual statements
contained herein are the FINDINGS OF FACT made with respect to this matter.
Petitioner leased a Lincoln Aviator 4 door sedan from Holman Lincoln Mercury on
February 14, 2004. The vehicle had been driven 13 miles as of the date of
delivery and at the time of the hearing it had approximately 17600 miles. The
lease deposit at the time of delivery was $3,845.38 with monthly lease payments
of $671 for a total of 36 months. The gross capitalized value of the vehicle was
$48,618.56. (J-1). The lemon law application and attached repair history
together with the service invoices were offered into evidence as (P-1).
Shortly after the date of delivery, petitioner experienced several problems
including but not limited to, the air conditioning not producing cold air,
heated seats not working, rear window stuck open, drivers seat moving forward
while the vehicle is in motion, rear lift gate opening while the vehicle is in
motion, radio going on by itself and the blower fan increasing by itself.
Petitioner's primary concerns are the lift gate opening and drivers seat moving
while the vehicle is in motion. These present safety concerns according to
petitioner.
Petitioner, Jan Van Holt, testified. Petitioner leased the vehicle on or about
February 14, 2004. She indicated that this was not going to be her primary
vehicle. Petitioner resides with her sister, Sandra Steen, and her mother. Her
mother is ill. Petitioner drives a Chevrolet Envoy and leased the Aviator for
secondary use for her sister and mother. Since her sister, Sandra Steen, was the
primary operator of the vehicle, Ms. Steen ferried the vehicle to and from the
dealership for routine repairs and service in connection with this matter.
Ms. Van Holt offered a packet containing all of the relevant Lemon Law
documentation connected with this matter. (P-1). This packet contains the Lemon
Law dispute application. (P-1, p. 8). The application sets forth the service
history in connection with the pertinent non-conformities or defects alleged by
petitioner. It provides:
1st /defect Date Mileage Days out of Service
Lift gate (rear hatch) opens 7/29/04 10028 4
while driving
8/6/04 10237 4
8/12/04 10483 6
8/19/05 No paperwork given 1
10/25/04 14087 2
11/22/04 16181 4
12/1/04 No paperwork given 2
~refused~
Driver's seat moves 7/29/04 10028 4
forward while driving
10/25/04 14087 2
11/22/04 16181 4
12/01/04 No paperwork given 2
~refused~
(P-1, p. 10).
Van Holt described in detail the particulars of the defects. She initially
described the nonconformities connected with the front seat. She explains the
front seat is fully electric. While her vehicle is in motion, the seat would, on
its own, move all the way up. It would not stop. She explained that she must
turn the car off, get out of the car, and start the car to reset the seat. Van
Holt concluded that the seat presents a safety issue. The seat would move so far
forward that it would press her chest into the steering wheel. It would
adversely impact her ability to operate the gas pedal and brake. This changed
her foot and body positioning in connection with all of the mechanical
operations of the vehicle. It was also alarming and distracting. Van Holt
explained that this has occurred at least six times during her operation of the
vehicle since it was delivered. Furthermore, her sister, Sandra Steen, operates
the vehicle on a more frequent basis. Ms. Steen testified that this has occurred
at least four times during her operation of the vehicle since the delivery. Both
Van Holt and Steen could not identify any specific event, terrain, weather
conditions, speed, or other factor that triggered the seat malfunction. They
stated that they observed the circulation fan connected with the heat and air
conditioning would increase in speed when the seat would move forward.
Van Holt also described the particulars of the rear tailgate or lift gate
nonconformity. She stated that she first experienced the defect on a trip to
Florida in or around July 2004. She recalled that the tail gate or lift gate
opened twice, once on the way down to Florida and once on the return trip. When
this occurred it was alarming. The lift gate would fly all the way open. The
rear compartment of the vehicle would be exposed to the outside. Van Holt again
concluded that the rear lift gate was a substantial safety issue. She stated
that the malfunction was alarming and distracting. She was concerned that
luggage or other items in the vehicle could fall out of the car on to the
roadway. If her belongings flew out of the vehicle, it could cause an accident.
Ms. Van Holt also addressed the service history for the vehicle. Van Holt had
her vehicle serviced by the dealer. The vehicle has been serviced on numerous
occasions between the date of delivery and the date of the hearing. (P-1, p.
15-42). The service records indicate that the dealership could not duplicate the
electrical problem with the driver's front seat. However, the dealership was
able to duplicate the defect with the lift gate. The vehicle was test driven and
on August 12, 2004, the dealer was able to duplicate the defect connected with
the lift gate. (P-1, p. 28). Van Holt stated that subsequent to August 12, 2004,
the lift gate has malfunctioned as she had previously described.
On December 19, 2004, Van Holt served her last chance notice upon Ford Motor
Company. (P-1, p. 3). The vehicle was brought to the dealership for service
pursuant to the last chance letter on December 30, 2004. The defects connected
with the front seat and the rear lift gate were raised at this time. The
dealership was unable to duplicate these conditions. (P-1, p. 41). The vehicle
was then returned to the dealership for further investigation and damage repairs
on or about January 6, 2005. The dealer retained the vehicle for observation for
several days. When it was delivered, the vehicle had approximately 17,400 miles
and as of the date of the hearing, it had approximately 17,600 miles.
Accordingly, it was driven approximately 200 miles since January 6, 2005.
Notably, the vehicle remained with the dealership since January 6, 2005. The
dealership asserts that petitioner abandoned the vehicle.
Ms. Van Holt discussed her alleged abandonment of the vehicle. Petitioner stated
that she enjoys the vehicle and never intended to abandon it. She testified that
the dealership has not contacted her to advise whether the repairs were
completed. Petitioner explained that her vehicle was returned to the dealership
for both defects and property damage. Apparently the vehicle sustained some
scratches or incurred some dents. The dealership repaired the property damage
and further investigated the alleged nonconformities upon delivery of the
vehicle on January 6, 2005.
During cross-examination, petitioner stated that she has not received a
telephone call or written letter from the dealership directing her to pick up
the vehicle.
Respondent offered the testimony of Robert Barnabei, Service Manager for the
dealership. Barnabei is responsible for the daily operations of the service
department. Barnabei testified about his technical training. He stated that he
received three weeks of technical training at the Saturn plant in Tennessee. He
also received Ford technical training. He is Master certified as a service
manager for Lincoln, Mercury and Mazda vehicles. He has been employed with the
dealership for approximately 15 years. He has been employed as Service Manager
for the last two years.
Barnabei described his contact with the vehicle at issue. He first reviewed the
service invoices and recounted the vehicle repairs in July 2004. The vehicle
received service for many items, including the rear lift gate repair. The
dealership was unable to duplicate the condition described by the owner.
Notwithstanding the inability to duplicate the defect, the dealership reviewed
all repairs connected with lift gates on its Oasis system, and initiated repairs
that, in their judgment, may alleviate the condition. The dealership replaced
the bumper slaps, which is the rubber gasket around the lift gate. The vehicle
was then brought in for similar complaints on August 12, 2004. At this time,
Barnabei became more actively involved. He road tested the vehicle for 72 miles
on the highway. The speed limits for the road were between 40 and 50 miles per
hour. The vehicle was driven for several days and he was unable to duplicate any
of the alleged safety defects asserted by petitioner. Specifically, Barnabei
recalled that the lift gate did not open as described.
On or about August 18, 2004, the dealership was able to duplicate the defect
with the lift gate. Barnabei was operating the vehicle and he observed that the
warning light came on when he was driving approximately 40-50 miles per hour. He
then stopped the vehicle and noticed that the lift gate became unlatched.
However, the lift gate did not fly all the way open as described by petitioner.
Rather, the lift gate was simply unlatched and the hydraulic arms kept the lift
gate in the down position. The latch assembly was replaced and Barnabei
concluded that the repair resolved this issue.
Barnabei testified that the vehicle was last brought in for service on January
6, 2005. The service, inspection and road test on the vehicle were completed on
January 10, 2005. The vehicle has been at the dealership since this date. He
stated that he contacted petitioner's residence and spoke to someone who was
very sick. He did not recall the name of the person. He advised that the vehicle
was completed and should be picked up. Barnabei stated that he called
petitioner's home on January 12, 2005, and left a voice mail message. He also
called on February 15, 2005.
Since the vehicle remained at the dealership, Barnabei stated that it was driven
to the OAL hearing by him. Again, Barnabei stated that he was unable to
experience or duplicate any of the serious defects asserted by petitioner.
Tony Rapacchia testified for respondent. Mr. Rapaccia is a Ford Motor Company
employee. He is a Zone Manager in the Philadelphia area. His job requires him to
resolve customer concerns within his geographic area. Rapaccia first had contact
with the vehicle at issue in January 2005. He received notice of a Lemon Law
complaint. Company policy requires him to become involved with these types of
complaints within 48 hours.
On February 15, 2005, at approximately 1:18 p.m., Rapaccia spoke to Ms. Van
Holt. Rapaccia verified this contact through computerized documentation. He
recalled his conversation centered around petitioner's request for a loaner
vehicle. He advised petitioner that the company would not authorize the issuance
of a loaner vehicle because petitioner's vehicle was fully repaired, operable
and ready to be picked up.
Rapaccia was subject to cross-examination. He was asked to recall specifically
who he spoke to on February 15, 2005. Rapaccia believed it was petitioner.
Petitioner noted that she and her sister were in New York City for three days
and the only one in the household was her ill mother.
James Cipriano testified for respondent. Mr. Cipriano is a Ford Motor Company
Customer Service Field Engineer in the Philadelphia region. He has been employed
with Ford Motor Company for approximately 26 years. As a Field Engineer, his
area of expertise involves technical matters. He has served as a Field Engineer
for approximately 10 years. He has received training in many technical areas. He
holds an Automotive Service Excellence certification (ASE). Additionally, Ford
Motor Company has provided him training in all Ford systems. This includes
diesel and gas engines, as well as electronics. As a 26 year employee, Cipriano
has progressed from a dealership employee all the way up to a corporate
employee. As a dealership employee, he served in numerous capacities, in
particular as a service technician and service manager. Therefore, he has had
on-the-job experience and training directly with the service and repair of Ford
vehicles. Based upon Cipriano's training and experience, respondent offered him
as an expert in the area of automotive service and repair. On the basis of
Cipriano's testimony, including his experience and training over a 26 year
period, the motion was GRANTED.
Cipriano first had contact with petitioner's vehicle in early January 2005. He
became actively involved because of the Lemon Law last chance letter. He
personally inspected and road tested the vehicle at issue. Additionally, he
utilized the Worldwide Diagnostic System (WDS) in conjunction with his
inspection. The WDS is a computerized diagnostic tool that tests all the modules
and computer systems throughout the system. Cipriano stated that any defect,
nonconformity, malfunction, or even pending or anticipated defects are diagnosed
or recorded by the WDS. The WDS searches the modules and looks for error or
trouble codes. After inspecting, road testing and submitting the vehicle to a
WDS computerized examination, Cipriano stated that no codes, defects, or
nonconformities were detected.
Cipriano also road tested the vehicle on the date of the hearing. He drove the
vehicle from the dealership to the OAL hearing, which is approximately 30 miles.
He then participated in a pre-hearing road test/examination with petitioner.
Cipriano stated that, collectively, the vehicle was driven approximately 30-60
minutes on the date of the hearing. Again, the defects were unable to be
duplicated. Cipriano then opined that, within a reasonable degree of
professional certainty, the vehicle does not present any safety defects or
nonconformities that would substantially impact its use, safety or value.
Cipriano based his opinions on the extensive road testing, inspections, service
reports, as well as the computerized check of the vehicle.
Cipriano was subject to cross-examination. Cipriano was questioned if the hatch
malfunctioned as described by petitioner, would it equate to a substantial
safety defect? Cipriano stated, in his opinion, it would not. He opined that the
lift gate was in the rear of the vehicle and was not a passenger compartment.
Therefore there is no threat to the occupants of the vehicle. Furthermore, any
personal property would ordinarily be stored below the level of the lift gate
window. Finally, based upon the service invoices, it was his opinion that the
lift gate would not or should not fly open as described by petitioner.
Therefore, even if the lift gate became dislodged, it would set off a warning
light wherein the operator of the vehicle could pull over and simply shut the
gate.
Cipriano was questioned about petitioner's genuine interest and like for the
vehicle. Cipriano did recall that petitioner stated that she wanted the vehicle
repaired, did not want or press for a new vehicle, and stated that she liked
this car. Her only concern was to have the defects repaired. She was not seeking
any other relief.
Cipriano was asked whether there were any written notifications to petitioner to
pick her car up from the dealership subsequent to January 10, 2005. Cipriano was
not aware of any formal written notices to petitioner in this regard.
DISCUSSION OF THE LAW
For a significant number of people, the purchase of a new car 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). The Lemon Law was the legislature's recognition that the purchase of
a new motor vehicle is a major consumer transaction and that the absence of an
effective procedure for correcting defects in new vehicles would result in major
hardship and an unacceptable financial burden on the consumer. N.J.S.A.
56:12-29. The Lemon Law was therefore designed to require the manufacturer of a
new motor vehicle to correct defects originally covered under the manufacturer's
warranty which are identified and reported within a specified period and to
provide procedures to expeditiously resolve disputes between a consumer and a
manufacturer when defects in a new motor vehicle are not corrected within a
reasonable time. Ibid.
The Lemon Law obligates manufacturers and dealers to make all necessary repairs
if a consumer reports nonconformity in a motor vehicle to the manufacturer or
dealer during the first 18,000 miles of operation or during the period of two
years following the date of delivery. The statute defines non-conformity as "a
defect or condition that substantially impairs the use, value or safety of a
motor vehicle." N.J.S.A. 56:12-30. In the event the defect or condition is not
or cannot be repaired within a reasonable period of time, the manufacturer or
dealer must accept return of the motor vehicle and provide the consumer with a
full refund of the purchase price or, with the consumer's consent, a replacement
vehicle. N.J.S.A. 56:12-32.
It is the petitioner's burden to establish by a preponderance of the credible
evidence that the alleged non-conformity in the automobile is a defect or
condition that impairs the use, value, or safety of the vehicle. N.J.S.A.
56:12-30. A mere showing that there are defects in the vehicle is not enough.
The petitioner must prove that the defect or condition substantially impairs the
use, value, or safety of the vehicle. Anastasio v. Mitsubishi Motor Sales of
America, Inc., OAL Docket No. CMA 2100-90 (1990). In other words, not every
subjectively perceived flaw in a motor vehicle will rise to the level of a
nonconformity that qualifies the vehicle for treatment as a lemon.
While the concept of substantial impairment necessarily includes the consumer's
subjective assessment of the alleged defect or condition, that assessment must
have some basis in objective fact. Herbstman v. Eastman Kodak Co., 68 N.J. 1, 9
(1975). A subjective statement by the buyer that his or her confidence in the
motor vehicle has been shaken by the alleged non-conformity must be tested by an
objective factual evaluation. It cannot be otherwise, for if it were, the trier
of fact would be required to adopt, without question, the beliefs of the
particular consumer who has filed the Lemon Law claim. Coppeto v. Acura Division
of American Honda Motor Co., Inc., CMA 11149-98, Initial Decision (1999),
adopted, Director (March 20, 1999) http://lawlibrary.rutgers.edu/oal/search.html.
A lemon is not any automobile that has some defect. Only such defects that
qualify as non-conformities in accordance with the definition set forth in
N.J.S.A. 56:12-30 can render a motor vehicle a lemon, and then only where the
manufacturer or dealer is unable to repair the non-conformity within the
reasonable time standards established in the Act. Therefore, the fundamental
determination required in any Lemon Law case is that the asserted defect is a
non-conformity. If it is not, then regardless of whether or not the manufacturer
or dealer has been unable to eliminate the defect, and regardless of how many
times the manufacturer or dealer has retained the vehicle, no relief can be
granted. Anastasio v. Mitsubishi Motor Sales of America, Inc., supra, OAL Docket
No. CMA 2100-90.
The N.J.S.A 56:12-33 and N.J.A.C. 15:45A-26.5 set forth the preliminary steps
for the filing of a Lemon Law action. First, written notification of the
potential claim must be sent by certified mail, return receipt, by the consumer
to the manufacturer of a non-conforming motor vehicle, during the first 18,000
miles of operation or within twenty-four months after original delivery, which
ever is earlier. The notification must indicate that substantially the same
non-conformity has been subject to repair three or more times by the
manufacturer or its dealer and that the nonconformity continues to exist.
Petitioner mailed the "Last Chance Letter" on December 19, 2004. (P-1, p. 3).
Respondent did not dispute receipt of the letter. The procedural requirements
connected with the "last chance letter" were undisputed by respondent.
Accordingly, based upon the procedural history in this matter, I FIND that
petitioner complied with the procedural requirements to file a Lemon Law claim.
Upon meeting the procedural requirements for filing a claim and after the same
non-conformity has been subject to repair three or more times, petitioner is
entitled to a presumption that the dealer is unable to repair the
non-conformity. N.J.S.A. 56:12-33 a.
Respondent's service and investigation of the alleged defects has been
extensive. Between the period July 2004 and January 2005, the dealership and
Ford have engaged in 7 inspections or repairs and test driven the vehicle over
200 miles. It has been in the possession of the dealership for over 25 days.
Only one time was a defect duplicated and it was repaired. The lift gate
assembly was replaced. The test drives, inspections and computer diagnostics
have not yielded any evidence of a serious non-conformity. One explanation is
the defects observed by petitioner are so intermittent that they are unable to
be duplicated. But, these should be stored in the vehicle's computer system.
If confirmed, a seat or lift gate malfunction are the types of non-conformities
that could substantially impact the use, safety or value of the vehicle. If the
lift gate malfunctions permitting property to fly out of the vehicle and/or
distracts the driver, it could cause a serious accident. Similarly, if the
driver's seat malfunctions as described by petitioner, it could cause the
operator to loose control of the vehicle. The driver could be tightly pressed
into the steering wheel, lose ability to properly steer the car, or lose the
ability to properly operate the gas or brake pedal. These conditions, if true
are dangerous and could cause an accident. However, in the present matter the
respondent was unable to verify or duplicate the seat malfunction on numerous
occasions. And, the lift gate was repaired on August 12, 2004.
Notably, respondent argues that petitioner has not driven the vehicle subsequent
to the "last chance" repairs completed on December 30, 2004. (P-1, p. 41).
Respondent urges that this is fatal to petitioner's Lemon Law claim. Notably, no
defects were detected and no repairs were made on December 30, 2004. Hence,
there were no repairs or improvements for petitioner observe prior to the Lemon
Law hearing. Had repairs been made, it would be incumbent upon petitioner to
drive the vehicle so as to test the repairs. Had repairs been made on December
30, 2004, and petitioner not driven the car thereafter, her cause of action
herein would be defective. She would be unable to state that the repairs were
ineffective. Indeed no repairs were made and thus, there was nothing for
petitioner to test after December 30, 2004. Consequently, I CONCLUDE that the
fact petitioner has not driven the vehicle for any substantial period after the
last chance repairs on December 30, 2004, does not prevent her from establishing
her Lemon Law claims in the matter before me.
I FIND that the seat and lift gate defects described by petitioner did occur.
She was credible and forthright. She had no reason to contrive these defects.
Written statements were offered, confirming petitioner's and her sister's
experiences with the seat and lift gate. (P-1, p. 43-44). The dealership
confirmed defects with the lift gate after a few service attempts. Thus,
petitioner's version of events was partially corroborated by the repair made on
August 18, 2004, even though the defects were not found on August 3, 2004, or
August 10, 2004. (P-1, p. 19-28). Petitioner stated that she thoroughly enjoys
the vehicle. She did not want a new vehicle, money or damages. Petitioner
continued to pay the lease payments even while the car sat at the dealership lot
for several months. She simply wanted the car fixed so as to restore her faith
and confidence in its safety. Petitioner's representations in this regard were
confirmed by Cipriano. I therefore CONCLUDE that petitioner met her burden of
proof. She offered reliable proof that her vehicle has defects that
substantially impact its use and safety.
Where facts are contested, the trier of fact must assess and weigh the
credibility of the witnesses for purposes of making factual findings as to the
disputed facts. Credibility is the value that a finder of the facts gives to a
witness' testimony. It requires an overall assessment of the witness' story in
light of its rationality, internal consistency and the manner in which it "hangs
together" with the other evidence. Carbo v. United States, 314 F. 2d 718, 749,
(9th Cir. 1963). A fact finder "is free 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 or
in connection with other circumstances in evidence excite suspicion as to its
truth." Id. at 521-522. See 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). 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 choice. Renan Realty Corp. v. Community Affairs Department, 182 N.J.
Super 415, 421 (App. Div. 1981).
The amount of weight to be accorded an expert is within the discretion of the
tribunal. In State v. Williams, 232 N.J. Super 414, 421 (App. Div.), certif.
den. 11 N.J. 633 (1989), the court accorded little weight to the opinion of the
State's ballistics expert that starter pistols can chamber a tear gas round or
cartridge because he had not examined the starter pistol the defendant had
allegedly used in committing a robbery. Likewise, in Ford Motor Co. v. Edison Tp.,
10 N.J. Tax 153, 174 (Tax Ct. 1988), aff'd 12 N.J. Tax 244 (App. Div. 1990), the
court devalued the weight it accorded the testimony of an expert appraiser
because he had failed to examine a property which he said was comparable to the
subject property. But see Jablin v. Northvale Borough, 13 N.J. Tax 103, 106-107
(App. Div. 1991), where the court said that the failure of an appraisal expert
to inspect the interior of the building which he had appraised went to the
weight of his testimony and did not render it inadmissible at a tax appeal
hearing concerning the property, because he had sufficiently reviewed data on
the building which had been gathered by another appraiser. In Gabrellian &
Jessourian v. Oakland, 11 N.J. Tax 310, 315 Tax Ct. 1990), the allegedly
comparable sales relied upon by the taxpayer's expert in support of a lower
assessment for its shopping center property were said to be "devoid of any
probative utility" because the expert failed to supply the court with data
concerning the "most basic item" of relevant interest, i.e., the income
generated from those properties. An expert's property valuation and analysis was
entitled to little weight when based on a short, three hour visit to a large and
complex oil refinery operation. Coastal Eagle v. West Deptford Tp., 13 N.J. Tax
242, 286 (Tax Ct. 1993). A valuation opinion is more probative when the expert
appraiser has personally inspected the subject property. Meyerson v. Director,
Div. of Taxation, 15 N.J. Tax 128, 137-138 (Tax Ct. 1995).
Accordingly, credibility does not mean determining who is telling the truth, but
rather requires a determination of who's testimony is "worthy of belief" based
upon numerous factors. The process entails observing a witness's demeanor,
evaluating their ability to recall specific details, consistency of their
testimony under direct and cross examination, determining the significance of
any inconsistent statements or evidence and otherwise gathering a sense of their
candor with the Court. Having applied the aforementioned principles to the
instant matter, I FIND that more weight should be given to the facts offered by
petitioner for the reasons set forth supra. This does not mean that respondent's
witnesses were incredible. Rather, the evidence suggests that petitioner is
experiencing defects and the dealership cannot pinpoint the defects, even after
engaging in a good faith effort to do so.
While respondent fulfilled its Lemon Law obligation by making last chance
repairs on December 30, 2004, no additional repairs were made. (P-1, p. 41). I
am mindful that the dealership employed a full computer analysis and lengthy
road tests. Local and regional mechanics inspected the vehicle after December
30, 2004. Petitioner never returned to pick up and drive her car. Petitioner
claims that she was not notified to do so. However, Barnabei and Cipriano both
contacted her. Petitioner was out of town on some of the contact dates. However,
petitioner did recall having conversations with Cipriano in mid February 2005.
Petitioner asked for a loner vehicle. Cipriano rejected her request and advised
petitioner to pick up her car because it was done. All the confusion over
picking up the vehicle does not change the required proofs for a Lemon Law
matter. In the end, petitioner met her burden. I FIND the defects exist, occur
intermittently, and cannot be diagnosed by the dealership, even after good faith
attempts to do so.
It is some what perplexing why the extensive inspections and service provided by
respondent have not detected and resolved the defects. Respondent was clearly
responsive to petitioner's complaints. Nevertheless, the extensive services
offered by respondent did not fully negate the testimony and written statements
offered by Van Holt or Steen. Collectively, they established the existence of
serious non-conformities. Perhaps these defects appear so intermittently that
the computer systems in the vehicle and the service personal have not been able
to detect them. The defects appear to be electrical in nature and thus this
could explain the lack of computer recordation of these events.
Petitioner's Remedy
Pursuant to N.J.S.A. 56:12-30 to -32 the relief afforded petitioner is as
follows:
Title and Registration fees $203.00
All lease payments made
(670.38 x 13 months) 8,714.94
Security deposit/with interest 675.00
Capitalization cost -less rebate
(3,951.62 -3,000) 951.62
Total paid by petitioner $10,544.56
Less reasonable usage
10544.56 x 10028 ?0,000 1,057.40
Amount due petitioner $9,487.16
DECISION AND ORDER
I therefore ORDER, that the petitioner's application for relief pursuant to the
Lemon Law be GRANTED. Petitioner must return the vehicle to the manufacturer and
the lease terminated without penalty. Petitioner shall be reimbursed in the
amount of $9,487.16 plus the cost of the Lemon Law filling fee and interest on
the security deposit. Petitioner appeared pro se thus attorney's fees are not
applicable.
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 forty-five (45) days and
unless such time limit is otherwise extended, this recommended decision shall
become a final decision in accordance with N.J.S.A. 52:14B-10.
Within thirteen (13) days from the date on which this recommended decision was
mailed to the parties, any party may file written exceptions with the DIRECTOR,
DIVISION OF CONSUMER AFFAIRS, PO Box 45027, Newark, New Jersey 07101, marked
"Attention: Exceptions." A copy of any exceptions must be sent to the judge and
to the other parties.
March 11, 2005
DATE W. TODD MILLER, ALJ
Receipt Acknowledged:
DATE DIVISION OF CONSUMER AFFAIRS
Mailed to Parties:
DATE OFFICE OF ADMINISTRATIVE LAW
/sd
APPENDIX
WITNESSES
For Petitioner:
Jan Van Holt, Petitioner
Debra Steen
For Respondent:
Robert Barnabei, Holman Service Manager
James Cipriano, Ford Field Service Engineer
Anthony Rapacchia, Ford Zone Manager
EXHIBITS
For Petitioner:
P-1 Lemon Law Application, lease agreement, service invoices, last chance letter
and other documents (68 pages)
For Respondent:
None
Includes the first lease payment on February 14, 2004 through February 15, 2005.
Total cost to petitioner multiplied by the mileage when the vehicle was first
brought in for repair (P-1, p. 10) divided by 100,000.
Keywords, Lincoln Aviator defect, problem, lemon, Lincoln Aviator problem, defect, Lincoln Problem,
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