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
OAL DKT. NO. CMA800-05
JAN VAN HOLT,
FORD MOTOR COMPANY,
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.
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
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
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
(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.
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
DATE DIVISION OF CONSUMER AFFAIRS
Mailed to Parties:
DATE OFFICE OF ADMINISTRATIVE LAW
Jan Van Holt, Petitioner
Robert Barnabei, Holman Service Manager
James Cipriano, Ford Field Service Engineer
Anthony Rapacchia, Ford Zone Manager
P-1 Lemon Law Application, lease agreement, service invoices, last chance letter and other documents (68 pages)
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,
HOW DO I CONTACT
Law Offices of Howard A. Gutman,
230 Route 206, Flanders, New Jersey 07836
(973) 598-1980, E-mail Howian@aol.com
New York Office
305 Madison Avenue, Suite 449
New York, New York 10165 (212) 886-4838
FREE INITIAL CONSULTATION
We offer a free initial telephone consultation to discuss your lemon law case. Please feel free to call or e-mail our office.