Case Results

Barte v Kia (vehicle repurchase ordered under New Jersey Lemon Law)

Summary  This was a claim filed under the New Jersey lemon law Summary  The manufacturer disputed the claim and our office presented an expert auto mechanic and the consumer to testify about the problems and a repurchase was ordered with legal fees paid by the manufacturer. 


OAL DKT. NO. CMA07702-00
Howard Gutman, Esq., for petitioners
Brian McLvaine, Esq., for respondent
Record Closed: December 17, 2000 Decided: December 26, 2000

Petitioners, Darwin and Marie Barte, on February 6, 1999 accepted delivery of a purchased 1998 Kia Sportage, 
from Salerno-Duane Kia, Jersey City, New Jersey. On July 26, 2000, the New Jersey
Division of Consumer Affairs (Division, Lemon Law Unit), accepted petitioners'
application for the New Jersey Lemon Law Dispute Resolution System, pursuant
to N.J.S.A. 56:12-29 to 12-49.  Petitioners seek a total refund in the amount of
$27,093.95 based upon a complaint of stalling when their vehicle comes to a stop.
Respondent, Kia Motors of America, Inc., seeks to dismiss petitioners' complaint based
on its affirmative defense that petitioners' vehicle does not stall when it comes to a stop
or if it does the complaint does not rise to the level of a substantial nonconformity.

The sole issue is whether petitioners' complaint of stalling when their vehicle comes to
a stop, if factually established, substantially impairs the use, value and safety of their
vehicle under the meaning of N.J.S.A. 56:12-29 to 12-49.

The parties stipulated the following facts which are neither contested nor in dispute. I,
therefore, adopt the following contested findings of fact in this matter.  Petitioners purchased a 1998 Kia Sportage, 
Petitioner mailed a letter to the manufacturer on June 13, 2000 notifying the manufacturer
that petitioner was making a claim under the New Jersey Lemon Law that the
manufacturer had ten (10) days to repair or correct the defects set forth in a letter. This
letter is known as The Last Chance Letter.

The first repair attempt occurred on May 30, 2000 by Salerno-Duane Kia. The vehicle was
out of service for one day. The defect or nonconformity alleged was truck stalling out
when at a stop. The mileage at the time of the first repair attempt was 12,726.
The second repair attempt occurred on June 6, 2000 by Salerno-Duane Kia. The motor
vehicle was out of service for one day. 

Expert Testimony

It was stipulated that James Cookingham is an expert in automobile repair and
diagnosis. Cookingham testified that he inspected petitioners' 1998 Kia Sportage on
September 27, 2000 at petitioners' home in Jersey City. Mrs. Maria Barte told him that
she heard a knocking noise coming from the vehicle and it stalled coming to a stop.
After Cookingham checked the vehicle's statistics, he noticed that the malfunction
indicator-check engine light remained on. Cookingham heard a knocking noise coming
from the motor lasting about five minutes.
Cookingham used his snap on diagnostic hand scanner to retrieve codes that were
logged in the vehicle's computer. Cookingham stated that, if a check engine light is on,
it means there is a parameter or parameters detected by the on board diagnostic system
that has gone outside (its) design limits. Cookingham opined that if a check engine light
remains on, it will affect the vehicle's value because it indicates to a purchaser that a
repair is needed. A code from a check engine light gives a mechanic only a clue what
is wrong with the vehicle. A mechanic cannot gauge the amount of time needed to fix
that problem.

Cookingham stated that his snap on diagnostic tool is designed to abstract on board
codes, and he retrieved code P0101 which indicated that the fuel system was getting too
much or too little air. That problem could cause petitioners' vehicle to stall. 


N.J.S.A. 56:12-31 obligates manufacturers and dealers to make all necessary repairs if
a consumer reports a nonconformity 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 statute defines nonconformity to mean a defect or condition
which substantially impairs the use, value or safety of a motor vehicle.N.J.S.A. 56:12-
30. In a commercial context, substantial impairment of the value of an automobile is
broadly construed to apply to a nonconformity which shakes the buyer's confidence in
the goods. GMAC v. Jankowitz, 216 N.J. Super. 313, 339 (App. Div. 1987). Once the
purchasers' faith has been shaken, the vehicle loses not only its real value in their eyes,
but becomes an instrument whose integrity is substantially impaired and whose
operation is fraught with apprehension. Zabriskie Chevrolet, at 458.

If the manufacturer or its dealer is unable to repair or correct a nonconformity within a
reasonable time, then 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, finance charges, towing expenses and actual rental expense for a
replacement vehicle. N.J.S.A. 56:12-32. Prevailing consumers are also entitled to
recover reasonable attorney's fees and costs. N.J.S.A. 56:12-42.

As 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 nonconformity
if the vehicle has been subject to repair three or more times for substantially the same
defect or 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). To invoke the benefit of this
presumption, the consumer must first serve written notice on the manufacturer
providing one last chance to make repairs within ten days. N.J.S.A. 56:2-
33(b). Remedial legislation like the Lemon Law must be liberally construed in the light
of the mischief to be corrected and the end to be attained. Illario v. Frawley, 426 F.
Supp. 1132, 1136 (D. N.J. 1977); Carianni v. Schweneker, 38 N.J. Super. 350, 361
(App. Div. 1955).

Often the outcome in a lemon law case is fact-sensitive and turns on evaluations of
credibility. Compare Pelle v. Ford Motor Company, 93 N.J.A.R.2d 145 (Consumer
Affairs) (piercing and high pitched squealing noise) and Zuelch v. Ford Motor
Company, 91 N.J.A.R.2d 7 (Consumer Affairs) (humming and vibrations)
with Villagomez v. Toyota Motor Sales, USA, Inc., 93 N.J.A.R.2d 31 (Consumer Affairs)
(engine shaking and vibration) and Ostrovsky v. Toyota Motor Sales, USA, Inc. 92
N.J.A.R. 2d 137 (Consumer Affairs) (bounciness, swaying and creaking).
I CONCLUDE that the stalling and loss of power is a nonconformity which
substantially impairs the use, safety or value of petitioners' vehicle. It is obvious that a
vehicle which stalls suddenly, either coming to a stop or in the middle of traffic, poses
a threat to the safety of its occupants as well as other drivers on the highway.

It is ORDERED that Kia Motors of America, Inc. reimburse petitioners in the total
amount the parties stipulated in the Lemon Law refund computation (J-2), namely
$27,093.95. It is FURTHER ORDERED that petitioners' counsel be awarded a fee 
It is FURTHER ORDERED that petitioner shall return the vehicle to the dealership,
free from any substantial damage.

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