(handled by this office)






DARWIN and MARIA BARTE, Petitioner,


KIA MOTORS OF AMERICA, INC.,  Respondent. OAL DKT. NO. CMA07702-00


Howard Gutman, Esq., for petitioners


Brian McLvaine, Esq., for respondent

(Cabaniss, Conroy & McDonald, LLP)

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, vehicle identification No. (VIN) KNDJA7232W5578551 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.

This matter was transmitted to the Office of Administrative Law (OAL) from the Division of Consumer Affairs on August 29, 2000 for hearing pursuant to the Lemon Law, N.J.S.A. 56:13-39 to -49. A hearing was held on December 6, 2000, at the Office of Administrative Law, 185 Washington Street, Newark, New Jersey. The administrative law judge (ALJ) closed the record on December 17, 2000 after he received counsel's affidavit of services.


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:

1. Petitioners purchased a 1998 Kia Sportage, vehicle identification No. (VIN) KNDJA7232W5578551 from Salerno-Duane Kia, Jersey City, New Jersey on February 6, 1999.

2. The purchase price of the vehicle was $20,239 plus sales tax of $1,364.04 and registration fees of $217.

3. Petitioner made a down payment of $2,000.

4. Petitioner took delivery of the vehicle on February 6, 1999.

5. The odometer reading on the vehicle on the date of delivery was 10 miles; the odometer reading on the vehicle as of the date of the hearing was 16,480.

6. 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.

7. Petitioner stipulated that it received The Last Chance Letter on June 26, 2000.

8. 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.

9. The second repair attempt occurred on June 6, 2000 by Salerno-Duane Kia. The motor vehicle was out of service for one day. The defect or nonconformity was truck still stalling out when coming to a stop. The mileage at the time of the second repair attempt was 12,893.

10. The third repair attempt occurred on June 29, 2000 by Salerno-Duane Kia. The defect or nonconformity was vehicle stalls out all of the time. The mileage at the time of the third repair attempt was 13,262.

(a) Petitioner's 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. Moreover, the on board freeze frame turned on at 1394 rpms at a speed of 22 miles, a coolant temperature of 194 degrees Fahrenheit and an engine load percentage of 4.7.

Cookingham stated that the dealership's first repair order (P-1), dated May 30, reads a customer states - check for truck stalling at a stop. Cookingham stated that petitioners' complaint was consistent with his finding that the check engine light was on and with the code that his snap on tool retrieved when he inspected the vehicle. The dealership did not perform any repairs on May 30 because it found no problems. The dealership's work order (P-2), dated June 6, 2000, reads a customer states ck for truck stalling out when coming to a stop. Likewise, Cookingham stated that that complaint was consistent with his observation that the check engine light was on and the code that he detected. That repair order also reads TPS not operating correct, - replaced to correct. (TPS means throttle position sensor). Cookingham stated that the TPS relays the information of the position of the throttle back to the computer to allow the computer to calculate the appropriate airflows and timing for smooth operation. That condition rarely causes a no start but usually causes a stalling problem. Cookingham stated that the dealership's repair order (P-3), dated June 29, 2000, reads a customer states vehicle stalls at stops all the time - warm cold.

Cookingham opined that the cumulative impact of three repair attempts by the dealership to correct a stalling condition, a check engine light that remained on, and the code P0101 indicating a problem with an airflow valve or valves, suggest that the vehicle is unpredictable and could implicate safety. Cookingham opined that a stalling problem also suggests inconvenience, towing bills and possible absence from work. Cookingham opined that, based upon the history of the vehicle, it will stall out more frequently. Cookingham cannot fix petitioners' nonconformity because the after market sources have not yet been provided to independent mechanics.

On cross examination Cookingham testified that he inspected petitioners' car on September 27, 2000 and the mileage was 15,570. He did not take petitioners' vehicle for a test drive that day. Petitioners' vehicle has not stalled while he has been in the vehicle. He and John Scott, the district parts and service manager for Kia, took an eight mile test drive on route 280 on the date of the hearing. The vehicle did not stall during that test drive.

When he inspected petitioners' vehicle on September 27, he did not think a test drive was warranted. There have been no additional codes generated on the vehicle's computer since September 27, 2000. His report (P-7) states (page 2) that the code, P0101, found on September 27 was generated when the vehicle was going 22 miles per hour. Cookingham acknowledged that the work orders (P-1, P-2 and P-3) indicate petitioners' complained of a stalling problem when their vehicle came to a stop; however, he opined that

it only takes a matter of a second for a car to come to a stop with your foot on the brake, and it would be reasonable for a customer to state in his complaint that he was coming to a stop. It would happen immediately for the computer to register that code. If he was slowing down with a 4.7 percent load on throttle on the engine, which is very small, traveling at 22 miles per hour, a driver is moving at 25 feet per second or so. So, within several seconds a driver would have the opportunity to slow the car down and if the engine was out of parameter, it would have an opportunity to stumble.

Cookingham did not know when code P0101 was generated on the vehicle's computer. Cookingham observed no operating characteristics of the vehicle that indicated a stalling problem when he inspected the vehicle on September 27 or on the date of the hearing.

Cookingham did not dispute that a vehicle can generate codes for many reasons, including standard maintenance. Cookingham stated that check engine light can have a soft or a hard code. A soft code will go away after a certain number of emission cycles while a hard code stays logged on the computer forever. Petitioners' car had a hard code. To fix the P0101 code, Cookingham advised petitioners to go to a Kia dealership. Cookingham opined that the airflow valves are out of range. The cause of the defect could be a corroded plug or the replacement of a sensor; however, there is no guarantee that one code would lead to a simple repair because there is always a group of things to be followed and that is where the diagnostic ladder comes in. It will probably take extended diagnostic time.

Cookingham did not dispute that the work orders (P-1, P-2 and P3) reflect that the dealership took a reasonable approach to resolve petitioners' complaint.

Mrs. Maria Barte testified that she first experienced a stalling problem in May. As the vehicle approached a traffic light, the engine rattled, the engine just went dead. She brought the vehicle to the dealership for the first repair attempt on May 30, (P-1). The dealership told her that it did not find a stalling problem.

About two weeks after the first repair attempt, she and her husband experienced a stalling problem. After her husband made a brake application, the car lost power and went dead. Her husband pulled to the side of the road, waited a couple of minutes and the vehicle started. Her husband took the vehicle back to the dealership, a second time.

Referring to the second repair attempt (P-2), dated June 6, 2000, Mrs. Barte stated that the dealership replaced the TPS sensor and battery and road tested the vehicle. When Ms. Barte called the dealer to see if her vehicle had been fixed, Dominic (at the dealership) told her it wouldn't start. After she picked the vehicle up at the dealership and returned home, she stepped on the brake and it stalled out. She immediately brought the vehicle back to the dealership.

She returned to the dealership for the third and final repair attempt (P-3) on June 29, 2000. The dealership replaced plugs, performed a scan test, cleaned the fuel injectors and fuel induction, and replaced ignition coil wiring. The vehicle has continued to stall from the last repair attempt until the date of the hearing.

On November 13, she, her son and a six year old girl were driving in the vehicle. The vehicle was running very slowing and she stepped slightly on the brake and the engine rattled and the engine went dead. She tried to turn on the ignition but the vehicle would not start. She activated her hazard lights because she was in the middle of traffic. Other vehicles blew their horns; the six year old girl in the vehicle began to scream. She thought about having the car towed, but the engine eventually turned over. After that November 13 incident, she and her husband stopped driving the vehicle because they felt unsafe.

Mrs. Barte states that her brother-in-law drives her husband to the train station and she takes the bus to work. Her son has missed his physical therapy sessions. After the November 13 incident, she and her husband cancelled the insurance on the car. She and her husband drove to this hearing because they were instructed to do so by their counsel. Traveling to the hearing, the engine rattled and went dead. They experienced apprehension for their safety as they pulled to the side of the road.

On cross examination Mrs. Barte testified that she stopped driving the vehicle on November 13 or about three weeks before this hearing. From the last repair attempt, June 29, until November 13, 2000, she and her husband put 3,000 miles on the vehicle.

Mrs. Barte stated that she had to cancel about eight of her son's physical therapy appointments because she could not find alternate transportation. Mrs. Barte did not take her vehicle for repairs from June 29 to November 13 because the dealership had three repair attempts under the lemon law.

Cookingham advised her that the vehicle might not be safe to drive, and to bring it back to the dealership for repairs.

Darwin Barte gave virtually identical testimony as his wife and therefore it need not be recited again.

On cross examination, Mr. Barte testified that his car payment is $474 month and he has a 5 year loan. From the date of purchase, February 6, 1999, to the last repair attempt, June 29, 2000, he and his wife drove the vehicle 13,262 miles. From June 29 to the present date, they drove 3,000 miles in five months. Mr. Barte acknowledged that the vehicle did not stall on an eight mile test drive on the date of this hearing.


Having observed and assessed the credibility of the witnesses, I FIND as follows:

1. Petitioners' vehicle began stalling coming to a stop in May 2000.

2. Petitioners' vehicle continues to stall after three unsuccessful repair attempts by the dealership.

3. James Cookingham testified credibly that his snap on diagnostic scan tool retrieved code P0101 from the vehicle's computer on September 27, 2000. Cookingham concluded that the airflow valves are out of range and that that condition is consistent with petitioners' complaint of stalling.

4. The correction of petitioners' complaint of stalling may involve a minor repair; however, the dealership has not satisfactorily repaired that nonconformity after three attempts.

5. The vehicle did not stall on an eight mile test drive on the day of the hearing.


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 of $2,793.00 for 15.1 hours of work at the rate of $185 per hour.

It is FURTHER ORDERED that petitioners' expert witness, James Cookingham, be awarded a fee of $485.00.

It is FURTHER ORDERED that petitioner shall return the vehicle to the dealership, free from any substantial damage. The dealership shall remove the license plates from the vehicle and return them to petitioners.