NEW JERSEY USED CAR LEMON LAW USED CAR DEFECT
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Dana v. Heinkel's Automotive, CMA07488-04
BEFORE CAROL I. COHEN, ALJ:
STATEMENT OF THE CASE AND PROCEDURAL HISTORY
This case arises under the New Jersey Used Car Lemon Law N.J.S.A. 56:18-67 - 80. Automobile dealers who sell a used motor vehicle in New Jersey must provide a limited warranty covering certain components for a statutory period. If the used vehicle has more than 24,000 miles but less than 60,000 miles on the date of sale, the statutory warranty shall be for a minimum of "60 days or 2,000 miles, whichever comes first". N.J.S.A. 56:8-69(b). The petitioner (Dana) claims that the used car she purchased from the respondent is a Lemon; that it should be returned to the dealer and her money refunded.
Petitioner Mona Dana purchased a 2001 Pontiac Grand Am SE from Heinkel's Automotive Inc. on January 2, 2004. The petitioner filed a Used-Car Lemon Law Complaint with the Division of Consumer Affairs on June 8, 2004. The matter was forwarded to the Office of Administrative Law (OAL) on July 29, 2004. The matter was scheduled to be heard before Carol I. Cohen, ALJ, on September 13, 2004. On the day of the hearing the parties and the attorney for the petitioner appeared. The court spoke to the attorney for the respondent, who explained that he was in Superior Court in New Brunswick. The court would not release him to come to the hearing. This fact was confirmed by the court clerk. The matter was rescheduled for October 15, 2004 at 1:30 p.m. It was heard on that date and continued on October 23, 2004.
Whether there is a defect as alleged by the petitioner.
If said defect exists, whether it is a material defect which substantially impairs the use, value, or safety of the vehicle.
TESTIMONY OF WITNESSES
1. Mona Dana
Ms. Dana testified that she purchased the Pontiac Grand Am from Heinkel's, as a gift to her son, who was 17 and would be driving soon. Because the weather was bad, at the time the car was purchased, she did not drive it often. She testified that she drove the car two or three times to her job in Newark and did not have a problem. However, James Kokkalis, her companion, drove the car and complained of bucking. Ms. Dana stated that she could not duplicate the problem that Mr. Kokkalis complained about. The petitioner had trouble recalling the exact time and number of times that the car experienced problems. She referred to a document P-3, which she said was composed by Mr. Kokkalis and herself. According to the memo, the car was returned to Heinkels on January 21, 2004 with the complaint that it was misfiring. The respondent changed the spark plugs. On February 10, 2004, the car had to be towed to the respondent's place of business because it was running rough and couldn't be driven. It was at Heinkels for six days. On February 18 the car was returned to the dealer with the same complaint. The respondent replaced the fuel pump. The car was out of service for fourteen days. On March 5 Mr. Kokkalis complained that the engine was missing. He took the car to a gas station. They did a computer check of the car and gave him a printout. On March 29, 2004 the car got stuck and had to be towed to the dealer. It was out of service for thirteen days. Ms. Dana said that she would not drive the car, because she was afraid that she would get stuck. Ms. Dana acknowledged that Mr. Heinkel insisted that they pick up the car after the last repair, or he would charge storage. The car was picked up shortly thereafter.
Ms. Dana admitted that she had very few dealings with Mr. Heinkel. Most of the discussions took place between Mr. Kokkalis and Mr. Robert Heinkel. She only drove the car a few times at the beginning and had no problems. Ms. Dana denied that she had been given a written warranty, when she purchased the car. However, she acknowledged that Mr. Heinkel never refused to repair the car and, one time, he sent an employee out to pick up the car.
2. James Peter Kokkalis
Mr. Kokkalis testified that he was involved in the purchase of the car in question. He first noticed a problem after the first couple of times he drove the vehicle. He found that the engine was missing. He returned the car to Heinkel's on January 21, 2004. He said that Mr. Heinkel tried to find the problem, but he could not retrieve any data from the car's computer. He left the car for four days. When he went to pick it up, he was told that they could not find anything wrong with the car and it was running OK. He did not really use the car again until February 10, 2004. At that time, he was driving the car at a distance from the house and the engine started to misfire violently. He had to call AAA and have it towed to the dealer. Mr. Kokkalis had a discussion at the time with Mr. Robert Heinkel. He said that the problem with the car was stumping him. He decided to replace the ignition coils to try to solve the problem. Mr. Kokkalis testified that, on February 18, 2004, shortly after he picked up the car, it began misfiring and running rough. This time Mr. Heinkel replaced the fuel pump. The car was out of service for a total of twenty-four days during these three repairs.
Mr. Kokkalis testified that on March 5, 2004 the car started misfiring and running rough again. He took the car to S&R Auto in Plainfield and they did a computer read on the car. He gave the print out to Heinkel, when he picked the car up from their house. Mr. Kokkalis thought that this would help the respondent determine what was wrong with the car. The car was kept at the shop for six days. Mr. Kokkalis stated that he was driving the car on Old Short Hills Road on March 29, 2004, when it got stuck. He had to call AAA and have it towed to the shop. He said that, at the time, he spoke to Richard Heinkel, who said that probably the computer had to be replaced. However, that was not done. Instead, when he went to the dealer on April 5, 2004 to see what was happening, he saw Ronnie Heinkel replacing the engine in the Grand Am. He was surprised, because no one had called to discuss this action with him. He said that he asked Ronnie what was going on and he responded that something catastrophic had happened to the engine and it had to be replaced. They were replacing the engine with another used engine. The next day he spoke to Robert Heinkel, who said that the engine had catastrophic damage and it was suspicious. According to Kokkalis, Mr. Heinkel stated that, "the car had been tampered with, because you don't want it." Mr. Kokkalis testified that Robert Heinkel said that he was not obligated to tell him, that he was replacing the engine. He said that he was fulfilling his obligation under the warranty. He further asserted that there was nothing really wrong with the car, but he was holding up his end of the bargain. Mr. Kokkalis objected that he was getting a used engine with unknown mileage. After this he and Ms. Dana did not want the car. However, he was advised by the Lemon Law office, that he should drive the car to see if it was working now. Mr. Heinkel had left a telephone message and sent a letter saying that he would charge storage, if the car were not picked up. Mr. Kokkalis said that, when he picked up the car, it began bucking and stopping again. After this, he consulted Mr. Izzi to diagnose the problem with the car.
Mr. Kokkalis denied that Heinkel's had ever given him a written warranty. However, he stated that he felt that the respondent made a great effort to repair the car and never asked for any money from them. Mr. Kokkalis denied having buyer's regret and stated that the third car had been bought for Ms. Dana's son to use, when he started driving. Mr. Kokkalis said that he had consulted Consumer Affairs and they told him that he had a right to get receipts for the car repair. However, he was never able to obtain them from the respondent. He said that he was further advised to write the letters (P-1 and P-2) to comply with the Lemon Law.
3. Gregory Izzi
Mr. Izzi testified that he has known the petitioner for four or five years. He works with her and they are acquaintances. He stated that he has been a mechanic for thirty years and was certified to teach automotive repair five years ago. In addition, he is certified by the Institute for Automotive Service Excellence. Mr. Izzi stated that he was asked to inspect the vehicle, after the engine had been replaced. Mr. Izzi testified that he reviewed the computer print out that had been done by S&R Auto, before the engine had been replaced. The codes that were retrieved from the vehicle showed a random misfire code for cylinders four and five. There is a technical service bulletin, which helps to interpret the codes from the cars computer. Mr. Izzi testified that a common cause of a random misfire is a lean fuel mixture. This means that not enough fuel is going to the cylinders. This makes the cylinders hot and eventually they could disintegrate and implode. This could cause pieces of the cylinder to come off. Mr. Izzi stated that he inspected the car for about one hour in August or September of 2004. He plugged in the computer scanner and found a problem with the anti-knock system. The code for this problem is consistent with the diagnosis of a lean fuel mixture. What he found from the computer diagnosis was consistent with the complaints of the petitioner. On cross-examination, Mr. Izzi stated that he checked the long- term fuel trim. It read high, which meant that the fuel was running lean. When you get a high setting, it usually means that the computer is trying to adjust to the engine misfiring. Mr. Izzi stated that the condition that he found in the car would not be corrected by changing the engine. Whatever the problem was that destroyed the old engine would have the same effect on another engine installed in the car.
Mr. Izzi testified that he looked at the new engine and it appears to be a salvage engine. This would mean that the engine came from another used vehicle. Therefore, it was impossible to tell how many miles the car, that originally had this engine, had been driven. The engine is the heart of the vehicle. Therefore, the amount of miles on the previous vehicle is important. In addition, if the engine is not from a car of the same make and year, as the car that the petitioner had bought, then the camshaft would not fit correctly. If the sensors, that are now on the car, are not from the original engine, the readings could be misleading and then you could not accurately diagnose, if there is a problem. Mr. Izzi said that he would not put a salvage engine in a car, because most salvage people are not reliable and you really don't know how many miles are on the engine.
Mr. Izzi acknowledged that Mr. Heinkel did a lot of repairs to the vehicle. He replaced the battery, the fuel pump and the engine. However, he said that, while the respondent did a lot of things, he did not do the right things. He assumed that Mr. Heinkel did not use the computer scan, because the first thing you should do to diagnose a problem is to check the computer.
Mr. Izzi was brought back on rebuttal. He stated that he would have diagnosed the problem differently from Mr. Heinkel. He would have done a computer scan and check the codes. Next he would have done a compression test on the engine. If it failed that test, he would have done a leak test to see if there was a defect in the cylinder head from which water leaked out. He would then have performed an oscilloscope, which is an electrical graph of the ignition system, to see if the engine was firing correctly. If there is too much or too little voltage, this could cause a problem and could mean that the ignition system needed to be replaced. If the car passed the oscilloscope and ignition test, then he would go on to test the fuel system. He would do a fuel pressure test, which would show, whether there was enough pressure to run the fuel system. These are the steps that a trained mechanic takes to diagnose the problem. Instead, Mr. Izzi characterized what Mr. Heinkel did as a hit or miss procedure. Mr. Izzi stated, on rebuttal, that, if the respondent had performed the proper diagnostic procedure, prior to the motor blowing, he would have found the problem with the car. It would not have been necessary to replace the fuel pump, since it does not have much to do with the problem in the car. If the fuel pressure is fine, it is not necessary to change the pump. If it was a bad piston or cylinder head, then you only had to take the head off. You did not have to replace the whole engine. As for Mr. Heinkel's theory that a foreign object had been placed in the engine, Mr. Izzi said that what Mr. Heinkel described was uncommon. What he thought happened was that a part of the valve or the cylinder head came apart, because of the overheating caused by the lean fuel problem. An overheating condition could cause part of the metal in the engine to warp, melt or disintegrate and scatter inside the engine. However, without having the metal, that Mr. Heinkel claimed he found inside the engine, analyzed, he could not say where the piece of metal came from.
Mr. Izzi examined R-12, the cylinder head. He said that, from the black residue he saw on the two outer cylinders, he felt that the fuel was burning too rich. The tan color on the inner cylinders showed that the fuel mixture was too lean. The computer reading the inner cylinders, thought that there was not enough fuel and therefore dumped more fuel. This caused the outer cylinders to have too rich a mixture and to turn black. Mr. Izzi also identified R-14 (1) as a picture of the cylinder block. (The lower half was not part of the exhibit.) All of the combustion takes place inside the chambers in the lower half of the engine. Mr. Izzi pointed to R-14 (5), which, he said, was a better view of the two center cylinders, which were obviously tan. The outer two cylinders were blackened.
On re-cross Mr. Izzi hypothesized that the problem with the car was due to the failure of the fuel system, which caused the engine to run rough. Viewing R-13, the foreign object, did not change his opinion. In fact, it reinforced his opinion that, if the piece of metal was a component of the cylinder head, it had disintegrated, because of the lean fuel mixture and subsequent overheating.
4. Robert Heinkel
Mr. Heinkel testified that he has been in the auto repair business for thirty- four years. He began working for his father, who started the business in 1930, when he was nineteen years old. Most of his knowledge about car repair comes from "on the job training." He did, however, take a course at "Snap-On Tools" in computers for two days, three hours each day. Most of his car sales were to repeat customers. Mr. Heinkel stated that the car in question was first brought back to him three weeks after it was purchased. The complaint was bucking. He felt that this condition could be caused by the engine misfiring or the tires not being on correctly. He could not duplicate the problem, but at Mr. Kokkalis' urging, he drove the car for several days to see if the problem reappeared. He said that he drove the car back and forth from Seabright several times and tried to simulate the conditions that could have caused bucking. He could not duplicate the problem. He felt that the total mileage that he put on the car during this time was 200 miles.
Mr. Heinkel testified as to the steps that he took to diagnose the problem. He started with the ignition, because "when there is a weakness, it usually is in the ignition system." He replaced everything there including the spark plugs, insulators, ignition housing, ignition and coils. He did not charge the customer for this work. Mr. Heinkel testified that he gave the petitioner a ninety-day warranty, in writing, that provided for a fifty-fifty split for the cost of repairs. The third time that the car was brought in, Mr. Heinkel replaced the fuel pump. He said that it might have been a reach to do this, but, since the problem seemed to be intermittent, he decided to do it. It cost him $300.00 for the parts. He did not charge the petitioner.
Mr. Heinkel testified that, the next time the car was brought in, it was on the wrecker. The engine had obviously been hurt. Shortly after he saw the car, he spoke with Mr. Kokkalis, who said that the car was not operating. Mr. Heinkel stated that, when he took the engine out, it was heavily damaged; there was a lot of noise and the car was running badly. The car was operating on two cylinders, instead of four. The car shook a lot and there was a lot of smoke. He said that he was in the shop, when the engine was taken out of the car and the cylinder heads were taken off. He testified that two of the cylinders were very badly burned up.
On the second day of testimony, Mr. Heinkel brought in various parts of the car's engine. See R-11, R-12 and R-13. Mr. Heinkel stated that, when he changed the engine in the car, he kept the parts. No one touched them except his brother and himself. Mr. Heinkel explained that the manifold, which is on the motor of the car, supplies fuel to the engine. If something is dropped into the manifold, it will be pulled into the tubes that feed into the engine. Mr. Heinkel stated that R-13, a piece of metal, had been found inside cylinder two or three of the engine; the one with the damaged spark plug. Mr. Heinkel showed physical damage to the cylinder head and a bent valve. It was his opinion that this damage was caused by the foreign object, that was placed in the manifold and then worked its way into the engine. While only one piece of metal was recovered, it was his opinion that another object had been placed in another intake manifold, which caused damage to the other cylinder head. Mr. Heinkel testified that, when the car was brought in the last time, he could tell that it was only operating on two cylinders; he knew he had to take out the engine. It was Mr. Heinkel's opinion that this condition did not develop over a month's time. Rather, it happened as a result of sabotage. He said that the condition in which he found the engine had nothing to do with the prior complaints of the engine running rough.
On cross-examination, Mr. Heinkel stated that the two outer cylinders were blackened and the inner cylinders were tan color. The outer cylinders being blackened was the result of too much fuel being fed to the engine. Mr. Heinkel claimed that the clean cylinder heads, on two and three, were the result of the metal from the foreign object beating around the head. Mr. Heinkel said that he had put the Grand Am on the computer scanner, but he never got a code. He did not perform an engine compression test on the car, which would have shown if each cylinder was providing the proper compression. He also did not do a leak down test, which would have shown if there was damage to a cylinder, which would have been evidenced by a leaking of water. He did not perform an oscilloscope. He does not have that piece of equipment. He did not perform a fuel injector spray test, which is designed to see if the individual injectors are spraying correctly. Mr. Heinkel stated that he had not done these tests before he changed the engine because, before the car was brought in the last time, he had not found anything wrong with the car. Mr. Heinkel stated that he had performed a fuel pressure test, before he changed the engine. The test showed that the fuel pressure was all right, but he still decided to change the fuel pump.
Mr. Heinkel testified that the outside cylinders were black, showing a rich fuel mixture. He said that, when the two inside cylinders were damaged, the computer read that the manifold pressure was low and so it gave more fuel to the engine, which cause the blackened condition. He denied the petitioner's experts theory that the foreign object could have been part of the cylinder, the fuel injector, the electrode or the sensor. He also denied the petitioner's position that the computer sensed a lean mixture in the inside two cylinders, which would account for the tan color, and dumped more fuel into the cylinders, which caused the blackening in the outside cylinders. Mr. Heinkel stated that, in order to get a foreign object into the engine, you would have to take off the hose, which has an air filter on it, and which would prevent a foreign object from getting inside the engine, and then drop the object into the engine.
Mr. Heinkel stated that he did not tell Ms. Dana or Mr. Kokkalis that he was changing the engine, prior to doing so, because he was not charging them for the new engine. Since the petitioner had bought a used car, there was no reason not to install a used engine in the car.
ANALYSIS AND FINDINGS OF FACT
The following facts are neither contested nor in dispute, I therefore adopt them:
On January 2, 2004 the petitioner purchased a 2001 Pontiac Grand Am SE from Heinkel's Automotive Inc. The price of the vehicle was $9395.00 plus sales tax of $563.70 and motor vehicle fees including title, documents and plates of $123.50 for a total purchase price of $10,082.20. The petitioner paid the entire purchase price in cash.
On the date of purchase the Odometer reading was 33,317 miles.
The odometer reading on the vehicle, as of the first hearing date, was 35,075 miles.
Based on the testimony presented and the exhibits marked into evidence, I make the following FINDINGS OF FACT:
The petitioner first began experiencing problems with the vehicle on or about January 21, 2004. The problem complained of was "the engine missing." Mr. Robert Heinkel drove the car for approximately two hundred miles under different road and weather conditions, in an attempt to recreate the problem. The respondent was unable to recreate the problem and the car was returned after four days.
On or about February 10, 2004, Mr. Kokkalis again drove the car and the engine started misfiring. AAA was called and the car was towed to Heinkel's. Mr. Heinkel replaced the ignition coils and returned the car to the petitioner.
On February 18, 2004, Mr. Kokkalis drove the car again and found that it was misfiring and running rough. He took the vehicle back to the dealer, who replaced the fuel pump.
On March 5, 2004 Mr. Kokkalis drove the vehicle again. The engine misfired and ran rough. He took the car to S&R Auto in Plainfield. They performed a computer scan on the car and gave the results to Mr. Kokkalis. He gave these results to Mr. Robert Heinkel. The car was left at the shop for six days.
On March 29, 2004 Mr. Kokkalis was driving the car, when it broke down. He called AAA and the vehicle was towed to the respondent's shop.
On April 5, 2004 Mr. Kokkalis went to Heinkel's Automotive and saw Ronald Heinkel replacing the engine in the Grand Am. He had not been notified that the respondent was going to be replacing the engine.
The replacement engine is from a junk yard and has an undetermined amount of mileage.
N.J.S.A. 56:8-67 sets out the definitions under the Used Motor Vehicle Act. According to the statute a "material defect" means a malfunction of a used motor vehicle subject to a warranty, which substantially impairs its use, value or safety.
Under N.J.S.A. 56:8-71(a):
If, within the periods specified in Section 3 of this act, the dealer or his agent fails to correct material defects of the used motor vehicle, after reasonable opportunity to repair the used motor vehicle, the dealer shall re-purchase the used motor vehicle and refund to the consumer the full purchase price, excluding all sales taxes, title and registration fees, or any similar governmental charges, and less a reasonable allowance for excessive wear and tear and less a deduction for personal use of such vehicles. Refund shall be made to the consumer and lien holder, if any, as their interest appear, in the record of ownership kept by the Director of the Division of Motor Vehicles.
Under c(1) of the statute:
It shall be presumed that a dealer has a reasonable opportunity to correct or repair a material defect in a used motor vehicle, if :(1) the same material defect has been subject to repair three or more times by the dealer or his agent within the warranty period, but the material defect continues to exist.
It was the petitioner's position that the respondent had failed to diagnose the problem with the car in a learned way. While the petitioner had no doubt that Mr. Heinkel acted in good faith, in an attempt to repair the car, he acted in a hit and miss fashion. He did not perform the proper diagnostic tests and as a result, never really found out what was wrong with the car. If he had performed diagnostic tests that were mandated by the industries' standards, he would have discovered that the problem with the car was in the fuel system. If the problem had been handled properly, the engine would not have been damaged and it would not have had to be replaced. Instead, the respondent replaced parts that did not need to be replaced and left the petitioner with a car that had a used engine of indeterminate mileage.
The petitioner strongly denied that she sabotaged the car and asserted that there was no proof substantiating the respondent's allegations. There was no buyer's regret. She bought the car for her son, who was 17 at the time of purchase. She argued that the reason she had gone to Heinkels was that she had had positive prior experiences with the company and trusted the owners.
The petitioner asserted that she had followed the requirements of the Used Lemon Law Statute, which did not require the sending of a "Last Chance Letter" to the respondent. That requirement was applicable only to the New Car Lemon Law. The petitioner stated that she brought the car in more than three times for the same repair and that the respondent had failed to diagnose and correct the problem within that period of time. In addition, due to the respondent's hit and miss procedure in diagnosing the problem with the car, the vehicle now had a used engine of indeterminate mileage and lineage. In addition, it was impossible to judge the amount of wear and tear sustained by the replacement engine. All of these factors have shaken the petitioner's confidence in the safety of the vehicle. Ms. Dana asserted that the problems with the vehicle amount to a material defect, which impaired the use, safety and value of the car. Therefore, the respondent is obligated to repurchase the vehicle and to refund the full purchase price, excluding all sales taxes, title and registration fees, and less a reasonable allowance for excessive wear and tear and a deduction for personal use of the vehicle. See N.J.A.C. 56:8-71.
The respondent argued that the petitioner did not provide a last chance letter as required by N.J.A.C. 56:12-33b and therefore there is no presumption that the dealer was unable to repair or correct a nonconformity within a reasonable time. He further argued that Heinkels expended a great deal of effort to fix the vehicle, even though Mr. Heinkel had never found anything wrong with the car, prior to the engine blowing. The respondent asserted that the destruction of the engine was caused by sabotage i.e. placing a foreign object into the manifold. The motivation for destroying the engine was the fact that the buyer had decided that she did not need another car and the respondent refused to take the car back. Heinkel claimed that the Lemon Law statute was being used as a sword to take advantage of someone, who was good to the petitioner and dealt with her honestly. Further, the testimony of the respondent's expert was irrelevant, since he never inspected the car prior to the engine being replaced.
It is clear that the respondent's argument that the petitioner has failed to meet the requirements of the "Last Chance Letter" is inapplicable to this matter. N.J.A.C. 56:12-33 deals with the New Car Lemon Law. It requires notification to the manufacturer. Under the Used Car Lemon Law, the dealer is the party. The case cited by the respondent, Stassi v. Hyundai 95 N.J.A.R. 2nd (CMA) 49 (1994), involves a new car and therefore is inapposite in this matter. I have no doubt that the respondent made a good faith effort to repair the car, in order to please the petitioner. However, it is clear that the respondent failed to perform the proper tests to diagnose the problem with the car. As the petitioner's expert asserted, Mr. Heinkel used a hit or miss method to try to figure out what was wrong with the car. The newer model cars have sophisticated computer systems. In order to properly diagnose a problem, modern techniques must be used. Based on the testimony of Mr. Izzi, I FIND that the respondent failed to take the proper steps to diagnose the problem. If he had done so, he would have avoided a good deal of the repairs and replacements that he undertook, and which failed to remedy the problem. Further, the explanation given by Mr. Izzi, namely that the failure to diagnose a lean fuel mixture, caused the engine to overheat and parts of the cylinder to melt down and destroy the engine, is a far more reasonable explanation of what occurred with the engine. The respondent's allegations of sabotage are not borne out by the record.
The respondent's position, that the petitioner has failed to prove the present value of the vehicle and therefore is not entitled to refund, is equally implausible. What the petitioner was required to prove was that there was a material defect that affected the value of the automobile. As Mr. Izzi testified, the replacement engine in the vehicle is of indeterminate mileage, lineage and age. Certainly, the petitioner no longer has the car that she purchased and cannot fairly represent the mileage or condition of the car to a subsequent buyer. This certainly affects its value. In addition, she has a right to question the safety of the vehicle, based on the present condition of the engine and the prior problems with stalling and breakdown, which have not been properly remedied.
The parties have stipulated to the fact that the 2001 Pontiac Grand Am SE was purchased for a sales price of $9395.00, which excluded sales tax, title, registration fees and other government charges. The parties have also stipulated that the odometer reading at the time of purchase was 33,317 and the reading at the time of the hearing was 35,075 miles. The regulations allow a deduction for personal use of .375 per mile. The petitioner claimed that the respondent put 400 miles on the vehicle in test-drives to diagnose the problem. The respondent stated that, at the most he put on 200 miles. Since the petitioner has the burden of proof, and I FIND the respondent's testimony on this point credible, I will allow a deduction of 200 miles from the personal use mileage. This leaves a balance of 1558 miles multiplied by .375 or $584.25. This amount would be deducted from $9,395.00 leaving a balance of $8,810.75. Since I have not found that the car was sabotaged and there was no other testimony of excessive wear and tear, there are no further deductions to be made.
CONCLUSIONS OF LAW
Based on the foregoing facts and the applicable law, I CONCLUDE that the petitioner has proved her case under the Used Lemon Law Statute and she is entitled to a refund of the purchase price minus the deductions listed above for a total amount of $8,810.75.
It is hereby ORDERED that the respondent repurchase the 2001 Grand Am and refund the amount of $8,810.75 to the petitioner.
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).
Any party may file written exceptions with the DIRECTOR OF THE DIVISION OF CONSUMER AFFAIRS, PO Box 45027, Newark, New Jersey 07101, marked "Attention: Exceptions." Exceptions must be received by the Division of Consumer Affairs no later than eight (8) days from the date on which this recommended decision was mailed to the parties. Exceptions shall not exceed three (3) pages in length. A copy of any exceptions must be sent to the judge and to the other parties.
DATE CAROL I. COHEN, ALJ
Mailed to Division of Consumer Affairs:
DATE OFFICE OF ADMINISTRATIVE LAW
Mailed to Parties:
DATE OFFICE OF ADMINISTRATIVE LAW
J-1 Stipulation of Facts
J-2 Original Temporary Receipt
P-1 Letter from Ms. Dana, April 19, 2004
P-2 Letter from Ms. Dana, May 5, 2004
P-3 Grand Am History
P-4 Computer Read Out
P-5 Letter from AAA, April 29, 2004
P-6 Letter from AAA, June 18, 2004
R-1 to 10 Not In Evidence
R-11 Intake Manifold
R-12 Cylinder Head
R-13 Foreign Object
R-14 Five Sheets of Photos
James Peter Kokkalis
Mr. Izzi said that all remanufactured engines are stamped or tagged. This engine did not bear those markings.
The tan color was caused by the rise in temperature causing the cylinders to overheat. Eventually this could cause a part of the cylinder to come off and get sucked up by the engine. This could then damage the engine.
Mr. Izzi stated that he disagreed with Mr. Heinkels testimony that the darkened color on the two outer cylinders was the result of a rich mixture, which was caused by a foreign object getting into the cylinder head. He disputed Mr. Heinkel's testimony that the inner cylinder heads were clean because, they had been scratched by the foreign object. He said that, if that had been the case, the inner cylinders would be as black as the outer cylinders. Instead, the inner cylinders were tan, which only occurs if there is a lean mixture.
The petitioner alleged that Mr. Heinkel put on 400 miles, while he was testing the car.
Tthe respondent said that the warranty was in writing, but he did not have a copy with him on the day of the hearing.
Ms. Dana claimed that she brought the car in five times for repair.
Personal use is set by the IRS at .375 cents per mile.
The respondent argued that there were only two drivers in the family at the time of purchase and she realized that she did not need another car.
Under the used car lemon law statute, the petitioner is not entitled to attorney's fees, or the cost of towing or car rental.
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