Blath v. Mazda North America  CMA4568-06

BEFORE RONALD W. REBA, ALJ:

Statement of the case

This case arises under the New Jersey Lemon Law, N.J.S.A. 56:12-29 to -49, and the implementing regulations of the Division of Consumer Affairs, N.J.A.C. 13:45A-26.1 to -26.15.

Petitioners purchased a new vehicle manufactured by respondent. Petitioners allege that the vehicle suffers from a nonconformity in the nature of defective sliding doors, and that this nonconformity substantially impairs the use, value and safety of the vehicle. Pursuant to the Lemon Law, petitioners demand the refund of amounts paid for the purchase of the vehicle. On June 29, 2006, this case was transmitted to the Office of Administrative Law (OAL). Hearings were held on July 26, and October 4, 2006, and the record was closed after receipt of written memorandums from the parties.

factual discussion

On July 5, 2004, petitioners Michael and Martin Blath purchased a new 2004 Mazda MPV, vehicle identification number JM3LW28J840504510, from Crystal Auto Mall, an authorized Mazda dealership in Greenbrook, New Jersey. The total purchase price, including title, registration fees and taxes was $31,252.58, less a rebate of $3,500. Petitioners put down $8,500 towards the purchase price and financed the amount of 19,252.58. Petitioners claimed that there were several items that did not work correctly with the motor vehicle when first purchased, including transmission slipping and engine not starting, brakes squealing, shifting problems, turn signals not working correctly, and radio not working correctly, all of which were corrected as of the first hearing date, July 26, 2006.

Petitioner Michael Blath testified that between July 26, 2004, and July 30, 2004, the power sliding side doors on the vehicle stopped working. This matter was brought to the attention of the dealership and on August 12 or August 13, 2004, it was determined that the remote that operated the sliding doors needed to be reprogrammed. This was accomplished without any work being done on the sliding doors or on any other part of the vehicle.

Repair records from September 2004 show that the wiring harness for the side-door switches needed to be replaced, and the wiring harness was replaced in November 2004. At that time there were approximately 5,661 miles on the vehicle and the records indicate that the vehicle was out of service for approximately thirteen days. On July 13, 2005, the customer complained that the passenger-side sliding door would not open automatically from the outside handle. After inspection, it was determined that an R&R trans range sensor was the problem, which was replaced on July 20, 2005. vehicle repair records dated August 22, 2005, indicate that the customer complained that the right sliding door operated intermittently. At that time the remote that operated the doors was again reprogrammed, but no repairs were made to the vehicle itself. No other problems with the sliding doors were reported until December 27, 2005, when the customer complained that none of the door switches in the front part of the vehicle that controlled the sliding doors were operable. At that time it was determined that there was a possible short and, as a result, both the wiring harness and switch that operated the sliding doors were replaced at no charge. The January 21, 2006, invoice shows that there were approximately 16,275 miles on the vehicle at that time and that the vehicle was out of service for twenty-six days.

Petitioner Michael Blath testified that he had retained the services of legal counsel not long after purchasing the vehicle in order to protect his interests. On January 4, 2006, his attorney, David J. Gorberg, forwarded a "last-chance letter" pursuant to Lemon Law regulations to Mazda North American Operations demanding as a last resort before taking legal action that the manufacturer repair the defective sliding door, which, according to the january 21, 2006, invoice, was repaired; in fact, both the wiring harness and switch were replaced as mentioned above.

The petitioners apparently suffered no further problems with the sliding side door until May 15, 2006, when Mr. Blath reported to Crystal Mazda that his sliding-door switch was once again inoperable. The records show that after inspection of the vehicle at the dealership Mr. Blath was informed that the dealership suspected that the electronic door switch component had been tampered with and that the problems complained of on May 6 resulted not from vehicle malfunction but from an external source. The dealer replaced the wire harness and switch but refused to warranty the repairs, and the petitioners paid over $500 in order to retrieve the vehicle. At that time the vehicle's odometer showed 19,122 miles. Mr. Blath testified on direct and on cross-examination that he did not tamper with any of the components of the vehicle. He stated that just prior to the times that the electric door switch failed, he would detect a burning odor; however, this information is not included in any of the documents introduced by the petitioners or verified by any witness in this case.

Under cross-examination, Mr. Blath acknowledged that he is employed as an amusement machine technician. Respondent insinuated that Mr. Blath had sufficient knowledge to dismantle and disrupt the door switch in an attempt to show that the vehicle was defective pursuant to the Lemon Law regulations. Mr. Blath vehemently denies these allegations.

The respondent put forth two witnesses. The first, David Edighoffer, Crystal Mazda's service manager who has worked for Mazda for fourteen years, testified that he has never had an occasion to install a wire harness or had any problems with the electric doors of the numerous vehicles similar to the petitioners' vehicle that have been sold. He also indicated that regarding the August 2004 and August 2005 complaints, the electric sliding doors were not defective, but rather just the remote that needed reprogramming. Mr. Edighoffer testified further that it was he who instructed David Nehoff, the technician who worked on petitioners' vehicle, to put tamper-proof tape behind the switch that controlled the electric sliding doors when the vehicle was serviced in December 2005. This tape was reinspected in May 2006. The fact that the tape had been broken indicated to him that the switch had been removed by someone other than the mechanics at the Mazda dealership.

It should be noted that the statements of Mr. Edighoffer and of Christopher Capuzzo, the technical expert for the respondent, are based on conversations that they had with the mechanic who serviced the petitioners' vehicle and, for the most part, these individuals did not personally witness the incidents that they testified to during these proceedings. On the last hearing date, October 4, 2006, Mr. Blath testified that he still has recurring problems with the sliding doors; however, since the last repair made in May 2006 he has not brought the vehicle back to the dealership or to any other service station in order to substantiate this claim. Mr. Blath did not bring the vehicle to the hearing and testified that his wife and children were using the vehicle that day.

Christopher Capuzzo also testified for respondent. Mr. Capuzzo is employed by Mazda as a technical specialist. His duties include working with dealerships on difficult repairs, either by telephone or by visiting the dealerships when required. He estimates that he makes about 300 to 400 visits to dealerships each year.

Mr. Capuzzo worked for fourteen years at an auto dealership, in various capacities, after graduating from high school. He eventually became the service manager. He became a master Automotive Service Excellence (ASE) technician. After working at the dealership, Capuzzo became employed with Con Edison in New York as service manager for its fleet of vehicles. In December 2000 he started working for respondent as a technical specialist. He was qualified as an expert in automotive repairs and related matters.

After the within action was filed, Capuzzo spoke with the service manager and technicians at Crystal Mazda regarding the repairs made to the petitioners' vehicle and reviewed the repair orders. Capuzzo testified that the petitioners had complaints concerning a DVD player; however, he said that the DVD player and the accessories were not a Mazda problem, but were the responsibility of the dealership. Regarding the sliding doors, Mr. Capuzzo testified that the vehicle, when presented to Crystal Mazda in September 2004, had scratches on the lower left side of the dashboard, which was in direct proximity to the area where the side-door wiring harness was replaced. He testified that the repairs were performed under warranty and the customer was given the benefit of the doubt, even though it appeared that the damage was not a manufacturing defect. Mr. Capuzzo testified that when the vehicle was presented to Crystal Mazda in December 2005, the service manager, Mr. Edighoffer, ordered that tamper-proof tape be placed behind the switch. The dealership believed that the damage to the switch was from an external force, since the switch was not burned internally. Someone at the dealership indicated to him that someone had tampered with the parts and that the problem complained of was not a manufacturing defect.

It is the opinion of this judge that Mr. Capuzzo is not a pyrotechnical expert and therefore cannot give an expert opinion as to the source of the damage to the circuitry about which he testified. Mr. Capuzzo stopped short of accusing the petitioners of tampering with the vehicle, but testified that it was his opinion that the problems had been caused by an outside source, and not by the manufacturer. He produced the switch that was taken from the petitioners' vehicle in December 2005, pointing out the part of the switch that supposedly had been tampered with. The switch did show external rather than internal damage. Mr. Capuzzo further testified that he inserted the switch that was removed from the petitioners' vehicle in December 2005 into other vehicles and the switch worked perfectly, indicating to him that the problem was not with the switch, but rather with the harness, which convinced him that the damage was caused by an external rather than an internal source.

Mr. Capuzzo further testified that he inspected the vehicle on July 24, 2006, and issued a report indicating that the electric sliding doors worked without any problem and he had no difficulty operating the vehicle. He also testified, however, that the interior of the vehicle was extremely dirty and he produced photographs showing an enormous amount of debris in the vehicle, including crackers, popcorn, children toys and other items. In response to the petitioners' claim that the vehicle's sliding doors were still problematic, Mr. Capuzzo testified that the enormous amount of debris in the tracks of the sliding doors could easily interfere with the proper operation of the doors. He indicated that the door mechanism contained a fail-safe system, meaning that if an obstacle on the door's track interfered with the door, the door would reverse itself rather than engage fully, which was a protective measure implemented to prevent a child or other individual from being injured.

The witness further testified that he drove the vehicle and encountered no problems. He used a scan tool to check the onboard computer for any malfunctions. No problems were noted. According to the results of the computer analysis, his visual inspection and a test drive, Mr. Capuzzo gave the opinion that the vehicle was in good, safe and operable condition. However, he also testified there was body damage to the vehicle and a spare tire missing from underneath the carriage of the vehicle. Mr. Capuzzo testified that his records indicated that much of the time that the petitioners' vehicle was at the dealership for repairs resulted from the petitioners refusing to pick up the vehicle. The petitioners wanted instead to use a rental car provided by the dealership. Mr. Capuzzo also testified that one time Mr. Blath had lost his keys, forcing the vehicle to remain at the dealership longer than normal in order to obtain new keys and other items that were needed. No one else testified on behalf of either the respondent or the petitioners.

LEGAL ANALYSIS AND FINDINGS OF FACT

The Lemon Law statute, as enacted in the state of New Jersey, recognizes that the purchase (or lease) of a new motor vehicle is a costly consumer transaction and that the inability to correct defects in these vehicles creates both "a major hardship and an unacceptable economic burden on the consumer." N.J.S.A. 56:12-29. The law provides that should a consumer report a nonconformity (defined under N.J.S.A. 56:12-30 as a "defect or condition which substantially impairs the use, value or safety of a motor vehicle") 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, whichever is earlier, the manufacturer shall be obligated to make all repairs necessary to correct the nonconformity. N.J.S.A. 56:12-31. If the manufacturer or its dealer is unable to repair or correct the nonconformity within a reasonable time, then the manufacturer shall accept the return of the vehicle, and refund to the consumer the purchase price and other costs and expenses allowed by statute, less a reasonable allowance for vehicle use. N.J.S.A. 56:12-32(a). The same remedies are available to a consumer who leases a motor vehicle. N.J.S.A. 56:12-32(b).

N.J.S.A. 56:12-33 provides as follows:

a. It is presumed that a manufacturer or its dealer is unable to repair or correct a nonconformity within a reasonable time if, within the first 18,000 miles of operation or during the period of two years following the date of original delivery of the motor vehicle to a consumer, whichever is the earlier date:

(1) Substantially the same nonconformity has been subject to repair three or more times by the manufacturer or its dealer and the nonconformity continues to exist; or

(2) The motor vehicle is out of service by reason of repair for one or more nonconformities for a cumulative total of 20 or more calendar days since the original delivery of the motor vehicle and a nonconformity continues to exist.

Before this presumption arises, however, the consumer must serve written notice, by certified mail return receipt requested, upon the manufacturer, giving the manufacturer one last chance to repair the defect or condition within ten days following receipt of the notification. N.J.S.A. 56:12-33(b); N.J.A.C. 13:45A-26.5.

If the manufacturer fails to repair the defect or condition within a reasonable period of time, the consumer is then entitled to a speedy administrative remedy. N.J.S.A. 56:12-37. Remedial legislation, such as 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. Schwenker, 38 N.J. Super. 350, 361 (App. Div. 1955).

It is, however, an affirmative defense that the alleged nonconformity does not substantially impair the use, value or safety of the motor vehicle, or that the nonconformity is the result of abuse, neglect, or unauthorized modifications or alterations of the motor vehicle by anyone other than the manufacturer or its dealer. N.J.S.A. 56:12-40. Only defects that rise to the level of "nonconformities," as defined by statute, will qualify a vehicle for treatment as a "lemon." Anastasio v. Mitsubishi Motor Sales of Am., Inc., OAL Dkt. No. CMA 2100-90 (April 23, 1990).

In the instant matter, petitioners have satisfied the Lemon Law's procedural requirements by bringing their vehicle in for repair of the sliding doors on at least three occasions, which were documented by the repair orders introduced into evidence. The respondent has taken the position that the damage to the switch and harness that necessitated repairs was a result of an external force rather than a mechanical or electrical problem, or any design flaw. Additionally, I FIND that the vehicle was out of service for more than twenty days in total for repairs.

I have CONCLUDED that the petitioners have met the threshold procedural requirements to qualify under the Lemon Law regulations. I do not have sufficient evidence before me to find that the petitioners purposely caused the problems to the vehicle as alleged by innuendo by the respondent and its witnesses. Regarding the use, value and safety of the vehicle, I must recognize that the electronic door switch is an option and I FIND that the sliding doors will operate manually in the absence of this automatic feature and that the inoperation of the automatic feature does not create a safety problem for the vehicle. Although the petitioners complained that the inoperation of the electric doors is a recurrent problem, they have continued to use the vehicle, as evidenced by the fact that Mr. Blath's wife and children were using the vehicle on the last hearing day. Therefore, I find that the vehicle could be properly used and that safety was not a concern to Mr. Blath if his family was still using the vehicle. There was no testimony by Mr. Blath regarding loss of value of the vehicle due to the door problem; however, Mr. Capuzzo credibly testified for the respondent that the vehicle was operational, that the items that petitioners complained about were repaired, and that there was no substantial loss of value pursuant to the Lemon Law standards and regulations.

Even though the vehicle had been repaired several times and had been out of service for several days, I must recognize the fact that respondent's witness testified that after his inspection of the vehicle, including the sliding door, he found no defects. The vehicle was inspected by this judge and counsel for the parties on July 26, 2006. The automatic sliding doors seemed to work perfectly, and I did not note any mechanical defects at that time. Mr. Blath testified that he had recurrent problems with the vehicle; however, he has acknowledged that the vehicle was not brought back to any car dealership or automotive establishment that would buttress his position. Further, as testified to by respondent and not refuted by petitioners, the amount of debris in the vehicle, specifically in the door tracks, certainly could cause temporary problems to exist, and I FIND this to be a fact.

the law that is applicable in this matter is not in dispute. The Lemon Law states that a manufacturer or its dealer is unable to repair or correct a nonconformity if, within the prescribed time period, substantially the same nonconformity has been subject to repair three or more times by the manufacturer or its dealer and the nonconformity continues to exist. I am not convinced by the testimony of the petitioner and the evidence introduced, as well as my visual inspection of the vehicle, that the problems with the electric doors still exist. The vehicle was repaired in May 2006, and I FIND that no competent and credible evidence has been submitted that would suggest that the vehicle doors have continued to be a problem after May 2006.

Based upon all the evidence submitted and testimony offered, I CONCLUDE that petitioners have not provided sufficient competent and credible evidence that the vehicle suffered from a nonconformity that continues to exist.

ORDER

Based upon the foregoing, it is ORDERED that petitioners' application for relief be and is hereby DENIED and their petition is DISMISSED. 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 fifteen (15) days, this recommended decision shall become a final decision in accordance with N.J.S.A. 56:12-37(b).