KIA LEMON LAW DEFECT DECISIONS
                                                                                        

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Various problems have been reported on Kia vehicles.  If you own a defective Kia, you may be entitled to compensation or a repurchase. 

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keywords, Kia defect, lemon law, problem, Kia class action, claim, Kia lemon law, New Jersey lemon law, Kia vehicle problems, 

CHARLES E. WILLIAMS,
    Petitioner,
        v.
KIA MOTORS OF AMERICA, INC.,
    Respondent.
__________________________

Charles E. Williams, pro se

James Dobis, appearing for respondent
(Dobis & Reilly, P.C., attorneys)

Record Closed: January 5, 1999        Decided: January 26, 1999

BEFORE MARGARET M. HAYDEN, ALJ:

    This matter was transmitted to the Office of Administrative Law (OAL) on December 11, 1998 for a hearing as a contested case. A hearing was held on January 5, 1999 at the OAL, 185 Washington Street, Newark, New Jersey, at which time the record was closed.

    1.    Petitioner purchased a 1998 Kia Sephia from Autoland, Springfield, New Jersey, on May 10, 1998.

    2.    The purchase price of the vehicle was $15,184, plus sales tax of $1252 and other charges of $347 for a total of $16,783. The petitioner made a down payment of $4,250. The remainder of the purchase was financed through the Loan Servicing Center with monthly payments of $360.57, beginning June 16, 1998. As of the date of the hearing, seven payments were due to have been made on the loan.

    3.    When petitioner took delivery of the vehicle the odometer reading on the vehicle was 15 miles. The odometer reading on the vehicle as of the hearing date was approximately 9000 miles.

    4.    Petitioner mailed a letter to the manufacturer on or about September 2, 1998, notifying the manufacturer that petitioner was making a claim under the New Jersey Lemon Law and the manufacturer had ten days to repair or correct the defect stated in the letter. This letter is known as the “last chance letter.”

    5.    Respondent received the “last chance letter” set forth in the above paragraph 4 on September 8, 1998.

    6.    The first documented repair attempt occurred August 3, 1998 at Autoland. The second repair attempt occurred on August 27, 1998 at Autoland. The third repair attempt occurred on October 5, 1998 at Autoland. On each date the petitioner alleged problem with the brakes, transmission and engine.

(page keywords, Kia defect, lemon law, problem, Kia class action, claim, Kia lemon law, New Jersey lemon law, Kia vehicle problems), 

    Petitioner first brought the car in for repair on August 3, 1998, and the dealer kept it until August 27. When he went there to pick it up there were still so many problems with the car he left it until September 4, 1998. After writing a last chance letter to the manufacturer, he brought the car in on October 5, 1998, and the dealer kept the car until October 16, 1998. In total the vehicle was at the dealership for 42 days for repairs. The problems still existed after the last chance repair.

    Petitioner lived in Staten Island and worked in Morristown six days a week. He put almost 500 miles on the car a week just commuting to work. He found that he was very nervous in the car and he had totally lost faith in it. He felt that the brakes were unsafe and that the shimmy in the car was distressingly uncomfortable. During the last repair attempt, the dealer said the rotors were warped and replaced them with new rotors; however, the car shimmies just as badly as before. The dealer told petitioner that the shimming could not be fixed and that he would have to live with it. The petitioner was afraid of having an accident due to the braking problem. He had no choice but to use the vehicle to commute as it was the only way he could get from his home to his job. He had substantially reduced his planned use of the vehicle in that he only drove it back and forth to work. The petitioner felt that the transmission or the engine's lack of power was dangerous when he was changing lanes because he could not count on the transmission shifting properly or quickly enough.

Larry Dascenzo

    Larry Dascenzo, a District Parts and Service manager for respondent for this region, monitors dealers activities. He had driven the vehicle in question as well as 30 to 40 other vehicles of this model. He found normal conditions in the car. Although he admitted there was a shimmy in the vehicle, he noted that the car had always stopped to date. He said that he could not tell from the drive what the root cause of the shimmy was but it was not necessarily the brakes. It could be as simple as brake pads but it could also be something else. He also noted that the petitioner had put more than the average amount of driving mileage on the car on the short period he had owned the vehicle. He stated that in his opinion the car was as good as new.

    Petitioner's position was that he had purchased a new vehicle which never was right. After 42 days at the dealer for repairs, the was still a substantial impairment due to the excessive shimming as well as the transmission problem. The petitioner felt that his confidence in the vehicle had been shaken and that the impairment substantially decreased the safety and value of the vehicle. Therefore, petitioner requested relief under the Lemon Law.

    N.J.S.A. 56:12-31 obligates manufacturers and dealers to make all necessary repairs “[i]f a consumer reports a nonconformity in a motor vehicle to manufacturer or its dealer during the first 18,000 miles of operation or during the period of two years following the date or original delivery.” The statute defines “nonconformity” as a “defect or condition which substantially impairs the use, value or safety of a motor vehicle” N.J.S.A. 56:12-30. If the manufacturer or its dealer is unable to repair or correct a nonconformity “within a reasonable time,” the consumer is entitled to a refund. N.J.S.A. 56:12-32.

    Remedial legislation like the Lemon Law must be liberally construed “in light of the mischief to be corrected and the end to be obtained.” Illario v Frawley, 426 F. Supp. 1132, 1136 (D.N.J. 1977); Carianni v Schwenker, 38 N.J. Super. 350, 361 (App. Div. 1955). Thus the statute must be read to accomplish the stated legislative purpose of requiring automobile manufacturers either to correct substantial defects within a reasonable period of time or to restore the customer to the status existing before the purchase of the vehicle.

    As extra protection for the consumer the Legislature has also created a statutory presumption that the manufacturer or dealer has not met its obligation to repair a nonconformity if the vehicle has been subject to repairs three or more times or for more than 20 days for substantially the same defects. N.J.S.A. 56:12-33(a)(1). To invoke the presumption, the consumer must serve written notice on the manufacturer providing one last chance to make repairs within ten days. N.J.S.A. 56:12-33(b). The filing of such a notice with the manufacturer is a prerequisite to filing a lemon law application. N.J.S.A. 56:12-37(a). The notice must inform the manufacturer that substantially the same defect has been subject to repair two or more times and the defect continues to exist. N.J.A.C. 13:45A-26.5. I FIND and CONCLUDE that the petitioner has satisfied the procedural notice requirements in this case.

    In this matter it is the petitioner's burden to establish by a preponderance of the credible evidence that the alleged nonconformity in his vehicle is a defect or condition which substantially impairs the use, value or safety of the vehicle. N.J.S.A. 56:12-30. Even if the petitioner were to establish that there are defects in the vehicle, he still would not prevail if a substantial impairment of use, value or safety of the vehicle has not been proven. Anastasio v. Mitsubishi Motor Sales of America, Inc., OAL Dkt. CMA 2100-90 (April 23, 1990). In other words, not every subjectively perceived flaw in a motor vehicle will rise to the level of a nonconformity which qualifies the vehicle for treatment as a “lemon.” While the concept of substantial impairment necessarily includes the consumer's subjective assessment of the condition complained of, that assessment must also have some basis in objective fact. Herbstman v. Eastman Kodak Co., 68 N.J. 1, 9 (1975).

    As Jeff S. Masin, ALJ, observed:

A “Lemon” is not any automobile which has some “defect.” Only such defects which qualify as “nonconformities” in accordance with the definition contained at N.J.S.A. 56:12-30 can qualify for treatment as “Lemons” where the manufacturer or dealer is unable to repair the nonconformity within the reasonable time standards established in the Act. Thus, the fundamental determination required in any “Lemon law” case is whether the asserted defect is a “nonconformity.” 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 repairs have been attempted without success, or regardless of how long the manufacturer or dealer has been unable to eliminate the defect, and regardless of how many times repairs have been attempted without success, or regardless of how long the manufacturer or dealer has retained the vehicle, no relief can be granted.

[Anastasio v. Mitsubishi Motor Sales of America, Inc., OAL Dkt. CMA 2100-90 (April 23, 1990).]

    Nevertheless, substantial impairment of the value of an automobile can be broadly construed to apply to a nonconformity that “shakes the buyer's confidence in the goods.” GMAC v. Jankowitz, 216 N.J. Super. 313, 339 (App. Div. 1987). Once the purchaser's faith has been shaken, “the vehicle loses not only its real value in his eyes, but becomes an instrument whose integrity is substantially impaired and whose operation is fraught with apprehension.” Zabriskie Chevrolet, Inc. v. Smith, 99 N.J. Super. at 458. Whether the defect substantially impairs the use or value of the goods to a buyer is not purely objective; rather it is personalized as seen from the view point of the buyer and his circumstances but objective in the sense that the criterion is what a reasonable person in the buyer's position would have believed. Berrie v. Toyota, 267 N.J. Super. 152, 157 (App. Div. 1992).

    Here I FIND that the FACTS showed that during my ride the vehicle shimmied badly whenever the brakes were applied. Kia had had 42 days to address this problem but had failed. While Kia claimed that this was a mere annoyance as the brakes always work, the petitioner testified credibly that it was very disturbing to him and that he felt that it was potentially dangerous. I FIND that a reasonable person in petitioner's position would be justified in believing that the vehicle was unsafe due to the shimming every time the vehicle stopped. As a result, the driver of the vehicle reasonably felt apprehensive when he was driving the car. It was also apparent that this shimmy would decrease the value of the car to any potential buyer of the car who took a test drive. I do not FIND sufficient evidence of a substantial impairment in the transmission or engine.

    From the foregoing, I CONCLUDE that the petitioner has established by a preponderance of the credible evidence that the defect complained of exists and that it substantially impairs the safety and value of the vehicle. I therefore CONCLUDE that the petitioner has established by a preponderance of the credible evidence that the defect complained of entitles petitioner to relief pursuant to the Lemon Law. I further CONCLUDE that in accordance with N.J.S.A. 56:12-32(b) that petitioner is entitled to judgment of a refund as well as payment of the lien against the vehicle. Kia is to reimburse the petitioner his down payment of $4250, seven loan payments totaling $2,523.99 ($360.57 x 7) and the Lemon Law filing fee of $50 less an usage offset ^{See footnote 1 of $1,081.11 for a total cash refund of $5,742.88. Additionally, Kia is to pay directly to the lienholder the full amount due on the outstanding loan.}

keywords, Kia defect, lemon law, problem, Kia class action, claim, Kia lemon law, New Jersey lemon law, Kia vehicle problems, 

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