NEW JERSEY LEMON LAW COMMERCIAL USE DEFENSE

State of New Jersey

OFFICE OF ADMINISTRATIVE LAW

INITIAL DECISION

OAL DKT. NO. CMA8775-05

AGENCY DKT. NO. --

ANTONIO MARAGO,

Petitioner,

v.

DAIMLERCHRYSLER MOTORS

COMPANY, LLC,

Respondent.

_______________________________

Antonio Marago, petitioner, pro se

Albert N. Montano, Esq., for respondent (Hardin, Kundla, McKeon & Poletto, attorneys)

Record Closed: December 2, 2005 Decided: December 7, 2005

BEFORE RICHARD F. WELLS, ALJ:

STATEMENT OF THE CASE

Petitioner, Antonio Marago (hereinafter "Marago"), purchased a new vehicle manufactured by respondent, DaimlerChrysler Motors Company, LLC (hereinafter "Chrysler"). Marago alleges that the vehicle suffers from non-conformities in the nature of stalling accompanied by a complete shut off of all vehicle systems while driving. Marago alleges that this non-conformity substantially impairs the use, value, and safety of the vehicle. Pursuant to the Lemon Law, Marago 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 Marago has proven his case and alleges that the problems complained of are the result of unauthorized modifications or alterations of the motor vehicle by someone other than Chrysler or its authorized dealerships.

PROCEDURAL HISTORY

On November 3, 2005, Marago's Lemon Law Dispute Resolution Application, together with the requisite filing fee, was accepted by the New Jersey Division of Consumer Affairs, Lemon Law Unit. The Division transmitted the claim to the Office of Administrative Law (hereinafter "OAL") where, on November 22, 2005, it was filed as a contested case. N.J.S.A. 52:14B-2(b). On November 29, 2005, Chrysler's response to the Lemon Law Dispute Resolution Application was filed in the OAL. The case was heard on December 2, 2005. The record was closed upon the conclusion of the hearing on that date.

FACTUAL DISCUSSION

On or about March 7, 2005, Marago purchased a new model year 2005 Dodge Ram from the Fullerton dealership located in Somerville, New Jersey. The vehicle came with a "plow package" that included such items as a heavy-duty battery and chassis upgrades in anticipation of the future installation of a snowplow unit on the front of the vehicle. Marago did not anticipate commercial use of the snowplow, but rather indicated that it was his intention to plow driveways for his friends and his household, as well as plow the parking lot for the local rescue squad. Approximately eight days after he took delivery of the new vehicle, Marago had a plow unit attached to the front of his vehicle by a company called Central Jersey Trailer and Hitch Company. This company was recommended to Marago by the Fullerton dealership salesperson and Marago paid that company approximately $800 to install the snowplow apparatus.

Additionally, approximately a week or two after taking delivery of the vehicle, Marago installed a different radio in the dashboard of the vehicle. Marago testified that there was no need to cut or otherwise rearrange any of the wiring. Rather, all that Marago needed to do was purchase a different wiring harness through the Chrysler parts department and then plug the new radio into the existing plug that came with the new vehicle. Marago checked the compatibility of the new radio with the vehicle's existing wiring system and found that the radio replacement would present no problems.

Marago is employed as a mechanic with a county municipal works department. He does technical-related work for the county vehicular equipment and police vehicles. The only other addition that Marago did to his vehicle was the recent installation of rescue squad blue lights. However, Marago testified that although the blue lights were installed, he never actually went through with the electrical hookup because of the problems he began to experience with the vehicle.

For approximately six months, Marago experienced no relevant problems with the operation of his vehicle. The problem complained of occurred on or about September 20, 2005. While he was driving on Route 22 at approximately 60 mph, all systems on the vehicle (including the engine) shut down completely without any advance notice or warning whatsoever. Accordingly, Marago had no power, no lights, no power steering, no turn signals, no emergency flashers, and no power-assisted braking. Marago was able to react, put the vehicle in neutral, and ultimately restart the engine. Thereupon, he presented the vehicle for repair at the Fullerton dealership for repair, but the condition complained of was never remedied. Marago has experienced the same occurrence, namely, complete shut off of all vehicle systems without warning while driving, several times thereafter. As of the date of the instant hearing before this tribunal, the condition still exists and had not been remedied by Chrysler. Marago testified that he has no confidence in the vehicle whatsoever and is fearful that the problem will ultimately result in a serious collision.

Chrysler called two witnesses. The first witness was the service advisor from the Fullerton Chrysler dealership, Scott Schifter. He has been employed by Fullerton in that capacity for two years. On October 4, 2005, when presented with Marago's complaint, Schifter took the vehicle out on the highway for a test-drive. During that test-drive, Schifter experienced precisely the same condition complained of by Marago, namely, all power on the vehicle went off and stopped without any advance notice. Mr. Schifter testified that as he was driving the vehicle on Route 22, he was in the process of passing a vehicle and when he stepped on the gas to accelerate, he then realized that the engine and all associated systems had shut down without advance notice and were not running. Ultimately, Mr. Schifter got the vehicle restarted and returned it to the dealership, but no repairs were made.

Also testifying on behalf of Chrysler was David Cortright. He has been employed by Chrysler for approximately the past fifteen years, generally in the position of District Manager for service and parts. Part of his job is to investigate consumer complaints. He estimated that over the course of his employment, he probably looked at over 100 cars relating to electrical complaints.

Cortright testified that he usually attends classes two times a year on various technical subjects. He also receives and reads monthly tips or bulletins on the latest technology and felt that he had generalized knowledge of the technical aspects of the Dodge Ram vehicle. Cortright conceded that he was not ASC certified in the electrical area and never worked as an automobile mechanic. He stated that when he investigates a consumer concern and there is a need for technical input, he turns that aspect of the investigation over to "technical advisors."

Cortright testified that on October 4, 2005, he coincidentally happened to be at the Fullerton dealership. As a result, he took a test-drive in Marago's vehicle along with the service manager, Mr. Prince. Cortright noted that during that test-drive, he did not observe the condition complained of and so was not able to verify the concern. Cortright stated that he looked at the vehicle's dashboard and did not see the "check engine" light on. Cortright did not perform any tests or any further investigation other than looking in the engine compartment and observed wires attached to a "little round thing" that he determined was some sort of after-market installation.

Cortright himself did not do any testing of any nature. He did not personally view any effort to plug the dealership's diagnostic computer into the vehicle's systems, nor did he know if any of the service technicians performed any tests on the vehicle's wiring to determine why the vehicle had a propensity to shut down completely while driving on the road without any advanced warning. Cortright did not testify as to whether any battery drawn-down tests were performed or any other tests to determine proper grounding or the like.

During the hearing before this tribunal, and notwithstanding the fact that the dealership's service advisor verified the condition complained of by Marago, Cortright still referred to the problem complained of by the consumer of an "alleged" problem. Additionally, Cortright refused to characterize the condition complained of by Marago (and as verified by the dealership's service advisor) as a dangerous condition. Rather, Cortright expressed the belief that the operator of the vehicle, when faced with the sudden shut down of all vehicle systems, could simply put the vehicle in neutral, restart, and continue on.

Cortright offered the opinion that the after-market installation of the snowplow "could" be related to the customer complaint and "could" have caused the system shut down problems observed by Marago, as well as Service Advisor Schifter. Mr. Cortright gave no factual underpinning for his opinion that the snowplow wiring caused the shut down condition. In fact, Cortright admitted during the hearing that he had not even seen the service invoices before the actual hearing. Accordingly, his opinion that the snowplow wiring "could" have caused the problem was based upon the fact that he saw no "check engine" light on the dashboard, he took a test-drive in the vehicle that was uneventful, he was told other service technicians could find no failure codes when they ran a computer test, and he saw after-market wiring having to do with the snowplow installation in the engine compartment. Parenthetically, Mr. Cortright continually referred to the snowplow installation work as not being "authorized" by Chrysler. However, Cortright ultimately did concede that a vehicle sold with a "snowplow package" was expected to ultimately have a snowplow attached to it. Further, Cortright did concede that there was no requirement for a formal authorization from Chrysler or its dealership before the snowplow installation could take place. More significant is the fact that Cortright did not even attempt to demonstrate or even opine how the installation of the snowplow wiring actually affected the drivability of Marago's vehicle. Basically, the gravamen of Cortright's testimony was that the combination of no fault codes being found together with the fact that the snowplow wiring was "not Chrysler's" led Cortright to opine on the witness stand that the source of the complete shut down of the vehicle was the snowplow installation. Cortright opined that after-market installations "could" result in a power draw down of the battery. He felt that general battery operation "could" be affected by after-market component installation, although Cortright conceded he had never seen such a manifestation (shut down while driving) in other Dodge Rams. During the hearing, Chrysler offered no documentation in any form whatsoever that served to advise Marago (at any time) or otherwise put Marago on notice that the cause of the problem was related to the installation of after-market components, i.e., the snowplow.

On rebuttal, Mr. Marago testified that he was never told by anyone from Chrysler or Chrysler's dealership that the vehicle's shut down problem was caused by or even somehow related to the installation of the snowplow. Marago testified that it was for the first time during the hearing that he ever heard such a position taken by Chrysler or anyone from the Fullerton dealership.

FINDINGS OF FACT

I have listened intently to the testimony in this case. Essentially, Marago asserts that approximately six months after he purchased his new vehicle, while driving, sometimes at speeds of 60 mph, the engine and all vehicle systems would completely shut down without advance notice. Marago testified to numerous attempts to have the condition remedied by his Chrysler dealership, Fullerton. Further, Marago pointed to the fact that the manifestation complained of was verified and corroborated by a service advisor of Chrysler's Fullerton dealership. That service advisor independently experienced precisely the condition complained of by Mr. Marago.

On the other hand, it is the position of Chrysler, as articulated through its expert witness, Mr. David Cortright, that there was no non-conformity or defect in the vehicle, but if there was a problem, the problem was the result of the installation of a snowplow after-market accessory.

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 from the outset, Mr. Marago conceded that the condition only presents itself on an intermittent basis. However, I FIND it significant that the service advisor from Chrysler's Fullerton dealership separately and independently did experience precisely the same shut down condition encountered by the consumer on several occasions.

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. Marago did provide credible testimony. His testimony about the sudden shut off of all of the systems in his vehicle and the ongoing similar problems was clear, concise, unwavering, and believable. I observed no instance where Marago's testimony was inconsistent, contrived, or his truthfulness validly challenged. I found no reason whatsoever to disbelieve his forthright testimony with regard to the several incidents of vehicle shut down and I found his recall to be generally good. Although he was unable to give details of each and every time the vehicle shut down, he nevertheless supplied sufficient examples to persuade this ALJ that the problem did occur in the first instance and then reoccurred several times thereafter. Additionally, I am persuaded by Marago's testimony in regard to his genuine concern for the safety of his passengers and himself should he continue to operate this vehicle under circumstances where it is likely to once again simply shut down without warning. I am persuaded that Marago has reasonably and legitimately lost confidence in the safety, reliability, drivability, use, and value of this particular vehicle. Indeed, given the circumstance of the failure of the vehicle as described while driving along the highway, all parties concerned in this matter should be thankful that personal injuries were avoided. A complete shut down of all systems, including brake lights, turn signals, emergency flashers, power steering, and engine power itself, while driving in the passing lane of Route 22 had the very real potential for catastrophe. Although I FIND Mr. Marago's testimony credible, in and of itself, I also note that his recounting of the condition was completely verified and corroborated by an independent individual employed by the Chrysler dealership. Accordingly, this case is much stronger than a Lemon Law case involving an intermittent problem that never manifests during the time it is taken to the dealership for repair.

I am satisfied that Mr. Marago has provided sufficient, competent, and credible evidence that his vehicle suffered some type of defect or non-conformity such that it would completely shut down without any advance notice. I am further satisfied that Mr. Marago has proven by sufficient, competent, and credible evidence that this condition has occurred on several occasions (at least three times or more) and that condition has not been remedied or cured by Chrysler or its Chrysler dealership.

On the other hand, I am not at all impressed by the testimony of Chrysler's "expert" witness, Mr. Cortright. Although I found sufficient credentials to allow him to proffer his expert opinion testimony, I do note that I found him to be only minimally qualified in that regard. For example, Cortright admitted that he was neither ASC certified in electrical systems of vehicles, nor was he an automotive mechanic at all. Additionally, he conceded that although his job was to investigate consumer complaints, he would turn over the technical aspects of the complaint investigation to the service technicians. The trustworthiness of Cortright's testimony on technical issues was further brought into question when he testified about observing a "round little thing" that was hooked up to the snowplow wiring. Notwithstanding Cortright possessed minimal technical credentials, and notwithstanding the fact that Cortright performed no tests on the vehicle at all, he was not the least bit restrained in opining that the problem experienced by Mr. Marago was a function of the after-market snowplow installation and so not Chrysler's obligation. Compounding the believability deficit in Cortright's testimony is the fact that he offered no technical explanation or even a plausible explanation why the snowplow after-market installation was causing (or even could cause) the problem encountered by Mr. Marago. He offered no detail as to why any of the wiring was improper, nor did he give any other facts that would support his conclusory opinion that the snowplow installation was the culprit. Not only do I FIND Mr. Cortright's technical credentials to be minimal, I FIND his testimony about the snowplow installation to be weak and not unconvincing. Simply put, Cortright took a test-drive that produced no incident, looked at the dashboard and saw no "check engine" light, popped the hood and saw after-market wiring, and so concluded that the problem was not Chrysler's. During the hearing, Cortright also seemed to say that at one time or the other he was told that a service technician performed a diagnostic test on the vehicle and no fault codes were produced. However, I FIND that testimony also was lacking in credibility because during Cortright's initial testimony he stated that he had not seen the service invoices. Later, Cortright seemed to backtrack and explained that he heard from a service technician that no codes were revealed upon diagnostic testing.

I also found Cortright's testimony to be lacking in credibility when he maintained that it was his position that the condition complained of by Mr. Marago did not present a dangerous condition. From a reasonableness standpoint, and even from a layman's prospective, I FIND it impossible to conclude or even suggest that a vehicle, subject to complete shut down as it is being driven over a highway (Route 22 or any other road), could not be considered a dangerous condition under circumstances where the steering, braking, locomotion, and lighting systems all are rendered inoperable, instantaneously, and without advance notice. Additionally, I am concerned that Mr. Cortright was biased towards his company and so his credibility is suspect in that regard as well. The example that causes concern is the fact that Cortright originally chose to refer to Mr. Marago's vehicle as having an "alleged" problem. Cortright later backed off his attempt to convey suspicion that any problem existed at all in the Marago vehicle upon being reminded that on the very same day that Cortright took a test-drive, the service advisor from Chrysler's own dealership verified and corroborated Mr. Marago's complaint.

I FIND it further significant that Mr. Cortright's opinions were couched in terms of "could." He stated his opinion that the after-market snowplow installation "could" be the problem and that after-market installations "could" draw down batteries. Never did Mr. Cortright express his opinion in terms of the requisite degree of engineering or scientific certainty. That having been said, this ALJ was unable to attach any measurable amount of believability to his testimony over and above pure conjecture and speculation. Additionally, Cortright's testimony lacked a sufficient foundation or underpinning to amount to anything more than his personal opinion, i.e., he popped the hood and saw wiring that was not Chrysler original factory equipment and so therefore concluded the problem was not Chrysler's. As set forth above, he never performed any tests or provided any believable basis for his opinion. Under the circumstances, I am constrained to conclude it is of the ilk of groundless speculation. Further, Cortright provided no trustworthy explanation as to why Chrysler or its dealership did not advise Marago that the problems emanated from the installation of the snowplow accessory. Indeed, I FIND it somewhat incomprehensible that while knowing Marago's vehicle was subject to instantaneous and complete shut down without advance warning, the Chrysler dealership and Mr. Cortright permitted the vehicle to be returned to Mr. Marago and put back in service on October 4, 2005 without any repairs having been performed, or even any intensive diagnostic effort being attempted.

Under the net opinion rule, expert testimony is excluded if it is based merely on unfounded speculation. Vuccolo v. Diamond Shamrock Chemicals Co., 240 N.J. Super. 289, 300 (App. Div. 1990). The reasoning behind the net opinion rule is that the admission of expert opinion testimony without a factual foundation would amount to an invasion of the fact finder's function. Id. at 299-300. The net opinion rule is essentially a restatement of the established principle that "an expert's bare conclusions, unsupported by factual evidence, is inadmissible." Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). This principle is incorporated into N.J.A.C. 1:1-15.9(b):

If a witness is testifying as an expert, testimony of that witness in the form of opinions or inferences is admissible if such testimony will assist the judge to understand the evidence or determine a fact in issue and the judge finds the opinions or inferences are:

[N.J.A.C. 1:1-15.9(b).]

Thus, although the administrative rules give an ALJ latitude in admitting evidence, an expert's opinion must still be based on factual evidence. An expert witness's expertise qualifies him or her to take facts and form an opinion based on the facts, not to offer a factually unsupported opinion. Bowen v. Bowen, 96 N.J. 36, 50 (1984) (quoting Glen Wall Assoc. v. Wall Twp., 6 N.J. Tax. 24, 31-33 (1983)). An expert's opinion "must be based on a proper factual foundation." Dawson v. Bunker Hill Plaza Assoc., 289 N.J. Super. 309, 323 (App. Div. 1996). In fact, the probative weight of an expert's opinion can rise no higher than the underlying facts. Johnson v. Salem Corp., 97 N.J. 78, 91 (1984).

Net opinion is grounded on speculation, not facts. As the Appellate Division stated in State v. One Marlin Rifle, 319 N.J. Super. 359 (App. Div. 1999):

Qualified expert testimony is admissible to assist the trier of fact. However, there must be a factual and scientific basis for an expert's opinion. Bahrele v. Exxon Corp., 279 N.J. Super. 5, 30, 652 A.2d 178 (App. Div. 1995); Rubanick v. Witco Chemical Corp., 242 N.J. Super. 25, 45 576 A.2d 733 (1991). An opinion lacking in foundation is worthless. Stanley Co. of America v. Hercules Powder Co., 16 N.J. 295, 305, 108 A.2d 616 (1954). When an expert's opinion is merely a bare conclusion unsupported by factual evidence, i.e., a "net opinion", it is inadmissible. In re Yaccarino, 117 N.J. 175, 196, 564 A.2d 1184 (1989); Buckelew v. Grossbard, 87 N.J. 512, 524, 435 A.2d 1150 (1981). In essence, the net opinion rule requires an expert witness to give the why and wherefore of his expert opinion, not just a mere conclusion. Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540, 670 A.2d 24 (App. Div. 1996), certif. denied, 145 N.J. 374, 678 A.2d 714 (1996).

[Id. at 370.]

Based on the foregoing, I FIND that Mr. Marago was a credible witness and provided believable testimony. As concerns Chrysler, I found Mr. Cortright's testimony to be lacking in foundation and generally not worthy of belief. Therefore, I FIND:

CONCLUSIONS OF LAW

In its response to Marago's Lemon Law complaint, Chrysler claims that, inter alia, that the "alleged non-conformities were the result of abuse, neglect, or unauthorized modifications or alterations." Specifically, Chrysler asserts, through its expert witness, Mr. Cortright, that Marago's stalling/shut down problem is the result of the installation of the after-market snowplow accessory. For the reasons set forth in the above section dealing with Findings of Fact, I FIND Cortright's position to be mere conjecture or speculation and lacking in any believable foundational support in the record. Indeed, Chrysler offered no sufficient, competent, or credible evidence at all that any after-market installations were the cause of the problem. The entire case put on by Chrysler was the product of Cortright's personal opinion. As set forth above, I FIND that personal opinion not credible, not trustworthy, and not worthy of belief.

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 Marago complied with the statutory and regulatory procedure requirements under the Lemon Law. Specifically, Marago 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 Marago 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. Marago is entitled to the presumption because of my finding that Chrysler received written notification by Marago 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.

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. Marago to be credible and so am persuaded that Marago' vehicle exhibited long-term, albeit, intermittent, engine shut down that was never corrected by the manufacturer or the manufacturer's dealership.

I FIND that Marago 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)).]