NEW JERSEY LEMON LAW HONDA STEERING VIBRATION

State of New Jersey

OFFICE OF ADMINISTRATIVE LAW

INITIAL DECISION

OAL DKT. NO. CMA00977-07

KRZYSZTOF DYMKO,

Petitioner,

v.

AMERICAN HONDA MOTOR COMPANY,

Respondent.

__________________________

Record Closed: July 12, 2007 Decided: August 10, 2007

BEFORE LAURA SANDERS, Chief ALJ:

STATEMENT OF THE CASE AND PROCEDURAL HISTORY

Petitioner Krzysztof Dymko filed an application for Lemon Law Dispute Resolution with the New Jersey Division of Consumer Affairs on or about January 9, 2007, seeking relief under the provisions of N.J.S.A. 56:12-29 to -49 for his 2005 Honda Odyssey minivan. The application was accepted and transferred as a contested matter to the Office of Administrative Law (OAL), where it was filed on March 5, 2007, pursuant to N.J.S.A. 52:14B-1 to -15 and N.J.S.A. 52:14F-1 to -13. The hearing was held on June 18 and July 12, 2007, and the record closed on July 12, 2007. However, the full copies of exhibits P-16 (2005 Honda Odyssey Owners Manual) and P-17 (Michelin Owners Manual and Warranty) were not received at the OAL until August 8, 2007.

The issue is whether the minivan has such a pronounced pull away from the driver's control that the condition impairs the use, value or safety of the vehicle within the meaning of the Lemon Law.

testimony and other evidence

There is no dispute about the following. Petitioner purchased a new 2005 Honda Odyssey minivan, vehicle identification number 5FNRL38855B118726, from DCH Academy Honda in Old Bridge, New Jersey, on August 9, 2005. The vehicle had been driven twenty-five miles at the time of delivery. The purchase price was $40,007.00. The sales tax was $2,022.12, and there were fees of $99.70 (documentation preparation), $7.50 (tire tax) and $67.50 (registration). The vehicle was financed through a loan of $28,698.82 at 5.74 percent interest over sixty-six months beginning on September 23, 2005, and the trade-in allowance was $8,000. There was also an extended warranty fee of $1,695.

Documentary evidence and testimony from Krzysztof Dymko establish that on August 18, 2005, nine days after purchase, the petitioner brought the car in for repair, complaining that it pulled to the right. The repair record documented an odometer reading of 431 miles, and stated that the dealer mounted and balanced one tire. On December 8, 2005, Dymko again sought repair for pulling to the right, as well as a door problem. Although the dealer checked the alignment, the dealer could not find a problem. Dymko testified that on December 29, 2005, he again complained about the pulling problem, but did not notice until later that the dealership record of repairs for that day did not refer to the problem. On January 9, 2006, Dymko returned to the dealer, complaining that the car pulled to the right. A repair record for that date includes the comment, "alignment out and tire pull, rotate tires and realign." On April 3, 2006, a flat tire was replaced, but according to Dymko, the pulling problem was not resolved, and on July 11, 2006, he was again at the dealer complaining. The repair record for that date states that no problem was found. On August 18, 2006, Dymko returned to the dealership to complain about the pulling. By letter dated November 5, 2006, Dymko gave notice to Honda of his "last-chance" repair demand, in which he stated that his vehicle now pulled to the left and that the steering wheel shook violently when the vehicle hit a bump.

At hearing, Dymko testified that when there are small bumps in the road, the steering wheel starts to shake. On turns, the back of the van slides sideways. On a straight road, when both hands are removed from the wheel, the van has a pronounced drift. "You never know where it will go." Dorota Dymko, the petitioner's wife, who is the primary driver of the van, using it to get to work and transport her children, said she has had difficulty controlling the car since it was purchased. When she hits a bump, the car is suddenly not going in her direction.

Mark Hruska testified as an expert witness for Dymko. In addition to having more than thirty years' experience in repairing vehicles, Hruska is a certified master technician in eight areas, and his business is a certified site for technical and vocational schools in Middlesex County. He is not a Honda-certified technician. His business, formerly known as "Mark's Auto," is now known as "Last Chance" auto repair. Hruska said he drove the minivan on May 1, 2007, at which point the odometer recorded 22,849 miles driven. The steering wheel vibrated, and there was a pronounced pull to the right in the steering. When cornering or driving on ramps with rippled surfaces, the van would hop laterally. Hruska believes that the rear wheels were physically leaving the ground. The lateral movement was in excess of six inches. Even in town driving, if the van hit a bump, it would suddenly move right. Hruska said the steering is a safety issue. At those moments when the van becomes airborne and moves sideways, it is dangerous. The natural response from the driver is to sharply turn the steering wheel, setting up conditions for overcorrection. Normal cars, he said, do not get away from the driver in the way this vehicle does.

Hruska also pointed to tire wear as evidence of something seriously wrong. He noted that the two front tires were bald, worn down to the wear-bar indicators, with significant wear on the inner and outer edges, despite the fact they had only about 23,000 miles on them. According to the Michelin warranty, the PAX tires must be replaced when the tread wear indicators appear. From Hruska's own measurements, the front end alignment did not explain the wear. He also saw no evidence of driver abuse. The back tires were still in good condition. While acknowledging that the tires are subject to separate warranty by the tire manufacturer, Hruska said the speed of the wear was unusual enough to tell him something was not normal. He stated that it is obvious that there is a problem between the front and the rear of the vehicle. He said he would not want his own family in the vehicle. He believes that under certain road conditions, the hopping problem could cause the driver to lose control of the vehicle.

Bill Hallsworth, district service manager for American Honda, served as an auto mechanic for ten years, then as a Firestone service manager for approximately ten years, and has been involved in warranty and parts and service for Honda for twenty-three years. Hallsworth testified that he drove the car in August 2006 on a deeply crowned highway and noted some drift, but within specifications for the car. In an effort to "tailor-fit" the vehicle more closely to the Dymkos' satisfaction, he had suggested that the dealer put camber-adjusting bolts on the vehicle. He explained that camber is a term referring to the tilt of the tire, and that the bolts were intended to alter the camber slightly by tilting them one-half inch, still within the one-inch specifications, to correct against the right pull. He observed no actual problem or defect with the vehicle. At the time of the last-chance repair, Hallsworth was on the phone with the dealership, and asked the dealer to put the Odyssey on an alignment machine to see if there was a problem, but that analysis was negative. Although Hallsworth acknowledged that normal tires do not require replacement at 25,000 miles of wear or less, he also pointed to the need for frequent tire rotation on front-wheel-drive cars, because much of the weight and friction on the car are on the front wheels. The Michelin warranty, which is separate from Honda's warranty, does not explicitly state tire life. Rather, it promises free replacement within the first twenty-four months of service or before 50 percent of the tread is worn, and a pro-rated cost of replacement beyond that for the life of the useful tread, or six years, whichever comes first.

In June 2007, Hallsworth drove the vehicle a second time, again perceiving no problem. Anthony Marszalek, service director at DCH Academy Honda, said that he also participated in the test drive at the time of the last-chance letter and the drive in June 2007 and observed nothing unusual about the way the vehicle held the road.

The factual disputes are whether the vehicle pulls significantly in normal driving and hops sideways in certain driving conditions; whether the driving issues are so severe that they impact the usefulness or safety of the vehicle; and whether the tire wear is evidence of a problem in the steering of the vehicle. With regard to the pull, Honda argues that the Dymkos were inconsistent, first complaining of a right pull, then complaining about a left pull. Honda also contends that there is no causal link between tire wear and the steering. Dymko contends that the direction of pull was altered by the addition of the camber-adjusting bolts, but, regardless, the car hops sidewise and is dangerous.

Testimony as to the stability of the Odyssey was directly contradictory. The Dymkos testified that the vehicle drifts, and when it hits a bump it is suddenly is out of their control. Hallsworth, the district service manager for Honda, and Marszalek, service director at DCH Academy Honda, said they had not witnessed either atypical drift or any kind of hopping or lurching. Hruska, the Dymkos' expert, stated that he experienced the vehicle hopping laterally in excess of six inches, and, in his opinion, literally becoming airborne as it did. Of the five who testified, Hruska had the most hands-on experience in evaluating automobiles. Although Hallsworth spent eight years as an auto mechanic, that was at the beginning of his career, and most of his time has been spent in customer service. Although I do not doubt that Hallsworth and Marszalek were truthful in stating that they perceived no issue with stability on the two occasions they drove the car, Hruska had greater opportunity to evaluate the vehicle, and stated that, on bumps in particular, the rear of the vehicle hopped sideways, and that he believed it became airborne in making the six-inch move. Further, I am persuaded that the attempted repair in the form of the camber-adjusting bolts did not succeed, but rather shifted the direction of the lateral movement. Therefore, I FIND as FACT that from the time of purchase to the August 17, 2006, addition of the camber adjusters, the vehicle exhibited both a strong general pull and a lateral hop in certain situations to the right, and that since that addition the vehicle has pulled left in general, taking a strong left lateral hop on bumps and in some turns.

With regard to the tires, wearing out at 22,000 miles within seventeen months is a clear indication that something is wrong, but there was insufficient evidence to support a determination as to whether the problem stemmed from the tires themselves, the steering, or something else entirely.

DISCUSSION

Under the New Jersey Lemon Law, N.J.S.A. 56:12-29 to -49, if a consumer reports a nonconformity in a motor vehicle to the manufacturer or dealer during the first 18,000 miles of operation or during the first two years following the date of delivery to the consumer, whichever is earlier, the manufacturer or dealer must make all repairs necessary to correct the nonconformity within a reasonable time. If the dealer is unable to correct a nonconformity within a reasonable time, the manufacturer shall provide the consumer with a full refund of the purchase price. N.J.S.A. 56:12-32. However, the petitioner bears the burden of establishing by a preponderance of the credible evidence that the alleged non-conformity of the vehicle is a defect or condition that substantially impairs the use, value or safety of the motor vehicle. N.J.S.A. 56:12-30.

Here, American Honda argues that the petitioner has not shown use to be impaired, since the Dymkos drove the car more than 22,000 miles between August 2005 and May 2007. Certainly prior case law supports the use of mileage as a criterion for determining usefulness. See, e.g., Seidenfrau v. Chrysler Motor Corp., 95 N.J.A.R.2d (CMA) 168, 170 ("[t]he fact that [the consumer] drove 14,000 miles in six months establishes that there has been no impairment of use"); Picarelli v. Hyundai Motor Co. of Am., Inc., 95 N.J.A.R.2d (CMA) 115 (driving the vehicle 19,000 miles and for several months after the final repair attempt undermined the consumer's claim of a substantial transmission defect). Therefore, I CONCLUDE that the petitioner has not shown that the alleged nonconformity substantially impairs the use of the vehicle.

The Dymkos also contend, however, that the vehicle is unsafe. The courts have established a "mixed subjective/objective test, which allows the factfinder to consider a consumer's reasonably shaken confidence in the vehicle as a factor in determining substantial impairment." DiVigenze v. Chrysler Corp., 345 N.J. Super. 314, 333 (App. Div. 2001) (quoting Berrie v. Toyota Motor Sales, 267 N.J. Super. 152, 157 (App. Div. 1993)). Thus, if the problem is such that a "reasonable person" in the buyer's position would conclude that the defect impairs the use and value of the car, then the nonconformity will fall within the protections of the statute. In practice, the objective aspect of the standard has tended to focus on safety concerns. For example, in DiVigenze, the court found that intermittent but severe shaking that made the car almost impossible to control fell within the standard. In Suber v. Chrysler Corp., 104 F.3d 578 (3d Cir. 1997), the nonconformity was a suspension system that failed to pass state inspection and bottomed out so badly it damaged a tire. In Berrie, experts agreed that the vehicle would stall whenever the gas tank was less than half full and the car was parked at 30 degrees (the angle of the owner's driveway). The court found the stalling to be a design defect that substantially impaired the use of the vehicle.

Here, the petitioner's expert testified persuasively that in turning and on ramps with rough surfaces the vehicle hops sideways, and that it is dangerous because the vehicle leaves the driver's control. The fact that the lateral movement does not happen on every turn or ramp does nothing to defeat the dangerous condition when it does occur (although it probably makes it harder for the dealer to isolate and correct the problem). Therefore, using the mixed objective/subjective standard, I CONCLUDE that petitioner has met the burden of demonstrating that the Odyssey is unsafe and therefore a lemon within the meaning of the statute.

Accordingly, I CONCLUDE that, in accordance with N.J.S.A. 56:12-32, petitioner is entitled to a refund computed as follows:

COMPUTATION OF REFUND

 

$ 40,007.00 purchase price

$ 2,022.12 sales tax

$ 7.50 tire tax

$ 67.50 registration fee

$ 99.70 document preparation charge

$ 50.00 filing fee

$ 1,695.00 extended warranty

$ 1,150.25 expert fee

$ 4,368.25 attorney fee

$ 2,785.81 interest through August 23, 2007

Less: -$ 8,000 trade-in allowance

$ 44,253.13 TOTAL PURCHASE PRICE

Less: -$ 190.73 usage offset ($44,253.13 x 431 divided by 100,000 = $190.73)

 

$ 44,062.40 TOTAL REFUND

 

DISPOSITION

 

It is hereby ORDERED that petitioner return his vehicle to respondent or respondent's designee within fifteen days of the parties' receipt of the Final Decision and Order. Petitioner shall cooperate in a timely manner with the respondent in completing any documents necessary for the transfer of the title to the respondent. The respondent shall make a total refund of $44,062.40 within fifteen days of the parties' receipt of the Final Decision and Order. Any unreasonable failure on the part of the respondent to comply with the Order shall make the respondent liable for penalties pursuant to N.J.S.A. 56:12-37(b) and N.J.A.C. 13:45A-26.12(d). Additionally, in the event petitioner's vehicle is resold or leased in New Jersey, respondent shall comply with N.J.S.A. 56:12-35(a) and N.J.A.C. 13:45A-26.3(b) regarding notification to any subsequent purchaser or lessor and stamping the vehicle's certificate of title accordingly.

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 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, ATTENTION: LEMON LAW UNIT, 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 days from the date on which this recommended decision was mailed to the parties. Exceptions shall not exceed three pages in length. A copy of any exceptions must be sent to the judge and to the other parties.

August 10, 2007

DATE LAURA SANDERS, CHIEF ALJ

Date Received at Agency:

Mailed to Parties:

 

DATE OFFICE OF ADMINISTRATIVE LAW

ns

APPENDIX

 

WITNESSES

For Petitioner:

Krzysztof Dymko

Dorota Dymko

Mark Hruska

For Respondent:

Bill Hallsworth

Anthony Marszalek

EXHIBITS

For Petitioner:

P-1 Retail Installment Contract dated August 9, 2005 (three pages)

P-2 Illustrative breakdown of purchase costs

P-3 Monthly Statement from Honda Financial Services, dated June 23, 2007

P-4 Service record dated August 18, 2005

P-5 Service record dated December 8, 2005

P-6 Service record dated December 29, 2005 (two pages)

P-7 Service record dated January 9, 2006 (two pages)

P-8 Service record dated April 3, 2006

P-9 Service record dated July 11, 2006

P-10 Service record dated August 17, 2006

P-11 Last-chance repair letter dated November 5, 2006 (two pages)

P-12 Certified Mail Receipt (two pages)

P-13 Service record dated November 14, 2006 (two pages)

P-14 Summary skeleton outline of repair record

P-15 Photographs of vehicle (fourteen pages)

P-16 2005 Honda Odyssey Owner's Manual, page 348, tires

P-17 Michelin Owners Manual and Warranty

P-18 Certification of Services (received after record closed, but marked for identification)

 

For Respondent:

R-1 Service record dated October 28, 2005 (two pages)

R-2 Preliminary Report of Mark Hruska - identified but not in evidence

R-3 Technical Service Bulletin - identified but not in evidence

R-4 Lemon Law Dispute Resolution Application dated January 10, 2007 (five pages)

R-5 Letter of non-objection to amount of certification of services (received after record closed but marked for identification)

purchase price times mileage at first repair divided by 100,000. See N.J.A.C. 13:45A-26.11(b)(1).

OAL DKT. NO. CMA00977-07

9

New Jersey is an Equal Opportunity Employer



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