State of New Jersey

OFFICE OF ADMINISTRATIVE LAW

INITIAL DECISION

OAL DKT. NO: CMA5732-00

SUSAN and JAMES TAYLOR,

Petitioner,

v.

VOLVO CARS OF NORTH

AMERICA, INC.,

Respondent.

_______________________________________

Howard A. Gutman, Esq., represented petitioner

Stephen Donahue, Esq., represented respondent

(Hardin Kundla McKeon Poletto & Polifroni, attorneys)

Record Closed: August 18, 2000 Decided: August 30, 2000

BEFORE JEFFREY A. GERSON, ALJ:

STATEMENT OF CASE

This is a Lemon Law case filed pursuant to N.J.S.A. 56:12-29 et seq. Mr. And Mrs. Taylor claim that there is an odor emanating from the air-conditioning unit in their car which substantially impairs the use of the vehicle. Volvo contends that the mildew odor does not substantially impair the vehicle.

BACKGROUND

On or about May 26, 1999, petitioners purchased a V70 Cross Country Volvo from Smythe Volvo, Inc. On October 6, 1999, the vehicle was returned to the dealer for repair of what the petitioners characterized as a mildew smell from the air-conditioning system. An evaporator dryer kit was installed by the dealer pursuant to a Technical Service Bulletin (TSB) issued by respondent in September 1997.

Despite the installation of the evaporator, the vehicle was returned by the Taylors on October 21, 1999, once again complaining of a mildew odor from the vents. According to the repair order, a leaking evaporator was replaced. (Whether or not the evaporator was leaking, an assertion that the manufacturer denies despite its own dealers repair records, resolves itself down to a computer code which the manufacturer contends that the dealer entered by error). This second repair was followed by a third on or about February 14, 2000 when the vehicle was returned again with both Taylors complaining of a mildew odor in the air conditioning system. The dealer was unable to verify the complaint on this particular date and no attempt to repair what the Taylors had complained about concerning the mildew odor was made.

In June 2000, the Taylors filed their Lemon Law complaint and notified the manufacturer of their opportunity for a final repair attempt on or about February 17, 2000. The vehicle was inspected by Volvo on or about February 14, at which time they found no non-conforming condition.

TESTIMONY

On July 14, 2000 a hearing was conducted into the complaints of the Taylors. Despite what might seem to be a very keen difference between petitioners and respondent with respect to the factual allegations, the issue of petitioner's credibility was not seriously challenged.

In short, both petitioners testified that they have allergic conditions which causes difficulty in breathing and watery eyes when exposed to the mildew from the air conditioning system. They both do not use the air conditioner even when the weather would normally dictate its use and ride with the windows opened even when the weather would dictate not to do so.

The existence of the mildew in the petitioners' vehicle was confirmed by the testimony of their mechanic, who did in fact qualify as an expert. James Cookingham, an ASC auto technician and master technician test drove the car on or about March 17, 2000 and confirmed a strong odor of mildew, the presence of which caused the watering of his eyes.

The testimony of Sean Flanagan, the service manager at Smythe and Michael Assainte, Volvo's After Sale Support Manager did not refute petitioners' testimony and to some extent did, in fact, support it. Flannagan testified that mildew odors are not uncommon and that the air conditioning system is conducive to the growth of mold and mildew. The Technical Service Bulletin which suggests the installation of an evaporator dryer to avoid odor undoubtedly gives rise to an inference that the problem was rather substantial. The inference that could be drawn from the TSB is actually confirmed by the fact that Volvo subsequently made the evaporator dryer standard equipment on some of the 2000 year car models.

In June 2000, after the filing of the Lemon Law complaint but prior to the hearing, petitioners attempted a trip to North Carolina to visit their daughter. The vehicle was returned to the dealer by the petitioners upon their return from North Carolina with a complaint that the vent was leaking water - a complaint with significant veracity in that there was two inches of water in the vehicle which the dealer elected to remedy by replacing the carpet. At the time of the hearing, not only had the mildew odor from the air conditioner pervaded the car but now the odor from the mildew carpet rendered the car temporarily unusable. The vehicle had been out of service for approximately 55 days awaiting a new carpet.

THE LAW

According to the respondent's brief, the operative question in this case is not one of credibility, but rather, whether the petitioner's complaint constituted a substantial impairment of the vehicle's use, value and/or safety.

In essence, respondent argues that an individual consumer's subjective complaints or particular sensitivity to conditions in the vehicle does not warrant a finding that an impairment is substantial. Rutkowski v. Chrysler Corp., OAL DKT. NO. CMA4130-95 (March 18, 1996).

Odor complaints are not uncommon in Lemon Law cases. In the case of Ryan v. Ford Motor Co., 92 N.J.A.R.2d (CMA) 165 . . . an odor described as sufficiently nauseating to cause a consumer to avoid reasonable use of his vehicle resulted in relief being granted. Similarly in Edwards v. Mitsubishi Motor Sales of America, Inc., 93 N.J.A.R.2d (CMA) 37 . . . the presence of rotten egg odor which prevented petitioner from using the heater or air conditioner in addition to driving with the windows opened also resulted in a recovery. In Sodowick v. Jaguar Car, Inc., 96 N.J.A.R.2d (CMA) 148, the constant odor caused the petitioner to suffer physical constriction of the throat, headaches and a running nose. Once again relief was granted. In Sanchez v. Nissan Motor Corporation USA, 96 N.J.A.R.2d (CMA) 205, the odor of rotten boiled eggs caused petitioner's children to become nauseous and vomit. Relief was awarded. Conti v. Mitsubishi Motor Sale of America, Inc. 97 N.J.A.R.2d (CMA) 4, a rotten egg odor would cause the petitioner to become dizzy. Other witnesses confirmed the odor which was described as not insignificant and relief was once again granted. In a series of other cases, i.e., Rutkowski v. Chrysler Motors Corporation, 96 N.J.A.R.2d (CMA) 14; Monninger v. Hyundai Motor Company, 97 N.J.A.R.2d (CMA) 12 and Dworkis v. General Motors Corporation, 97 N.J.A.R.2d. (CMA) 93 relief was denied based on the fact that the severity of the odors was not significant.

It is apparent from an examination of these cases, a list which is not by the way exhaustive, is a clear indication that relief is dependent on the severity of the condition which itself is dependent on both subjective and objective testimony. In this particular matter, though all three of the witnesses who testified to adverse reactions from the odor also indicated some allergic condition, it is quite apparent that the mildew odor problem was an issue which Volvo attempted to resolve. The TSB, the three repair attempts, and the subsequent flooding of the vehicle are a monument to not only the veracity of the petitioners but also the severity of the condition. Since there is little dispute over the factual basis and little dispute over the credibility of any of the witnesses, it is hard to see how a purchaser forced to ride with windows opened and air conditioning off regardless of season cannot be said to have sustained a significant impact to their use. From the testimony presented and the documentary evidence offered, I CONCLUDE that the odor of mildew emanating from the vehicle was severe and amounted to a substantial impairment.

ORDER

It is ORDERED that Volvo pay to petitioners the sum of money required by statute based on the contract and financing agreement in evidence in addition to an attorney's fee of $3,844, an amount uncontested by respondent, plus $465 in expert costs.

If a mutual agreement as to price of the vehicle cannot be reached within one week of receipt of this initial decision, a conference call shall be placed jointly by petitioners and respondent to the undersigned to resolve the final figure.

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, P.O. 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 JEFFREY A. GERSON,

Administrative Law Judge

Mailed to Division of Consumer Affairs:

DATE DEPARTMENT OF COMMUNITY AFFAIRS

Mailed to Parties:

DATE OFFICE OF ADMINISTRATIVE LAW

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