The Lemon Law Blog

You would think that if the National Highway Traffic Safety Administration issues a safety recall for something as serious as seatbelts, the manufacturer would repair or replace ALL the defective seatbelts, not just some of them. But not Hyundai.

NHTSA announced that Sonata Hybrid models produced between December 2, 2010 and shipped to dealers through March 7, 2012 are being recalled, because they are equipped with a center rear seat belt fail to meet federal safety standards. About 14,728 cars are covered under the recall. Astonishingly, Hyundai balked at replacing the defective belts on approximately 13,095 cars already sold and on the road. It wants to get off cheaply by replacing only the belts in approximately 1,633 new cars still sitting in dealer inventory.

Hyundai Motor Company announced that it intends to file a petition for exemption from the recall on the basis that “the noncompliance described is inconsequential as it relates to motor vehicle safety." Meanwhile, Hyundai is not obligated to conduct an owner notification campaign until the petition is resolved. Whoever wins in this dispute, we wish manufacturers would err on the side of safety, not minimum compliance.

The National Highway Traffic Safety Agency has issued a safety recall for side airbag inflators used by a variety of manufacturers. The federal safety agency warns of the airbag's possible failure to deploy in the event of a collision, due to an error in the propellant mixture causing insufficient output of compressed gas.

Owners of the affected 2012 vehicles should be notified by mail, but you can get more information by clicking on the NHTSA campaign numbers here. For Nissan 12V055, for Honda 12V030, and for Suburu 12V047

Of course, drivers should never totally rely on airbags, but use them as a secondary safety device. It is still important to buckle-up. Think of it like the lifeboat on a vessel – you don’t really know if it will inflate until you are sinking.

If you get a recall notice, be sure to schedule an appointment to get your car fixed.

Kemnitzer Barron & Krieg attorneys are working on cases for clients with BMWs that have shut off in traffic. Investigation shows the following model BMWs may be subject to the defect that has caused our clients cars to stall: BMW 135i, 335i, 335xi, 535i, 535xi, X5 sdrive35i, X6 sdrive35i, Z4 sdrive35i. It appears to involve essentially all models with BMW’s 300hp twin turbo engine. The fuel pumps in the cars suffering from this defect cannot pressurize the fuel reliably at the pressure required for the twin turbos. Once the pump fails, the engine does not get the amount of fuel required and the car loses power. At best the affected cars will take extra time to start and run roughly, sometimes the cars will run with limited power, while at worst they shut off suddenly. We have reports of these BMWs stalling suddenly at high speeds, even at 70 mph on a Los Angeles freeway. Imagine: the car shakes violently and then loses all power. When a car loses all power it soon thereafter loses power steering, and hydraulic brake assist. This can make the car difficult to stop and difficult to maneuver. Crashes have been reported to the NHTSA as resulting from the fuel pump failure in these BMWs. BMW in its own report to the National Highway Transportation Agency noted that it was aware of the problem back in 2008. BMW has only now issued a recall on all the affected cars, even though it noted in its report to NHTSA in 2008 that loss of all power could occur as a result of the fuel pump failure and that the steering and braking of the affected car would be compromised. If you own one of these cars, take care to look for the early indications of a possible failure. If the car takes longer to start then it has in the past, the check engine light comes on, or the car is running roughly, go immediately to your warranty repair center. If this problem has been worked on and reoccurred, you may have a claim to have your car repurchased by BMW under California’s lemon law, the Song-Beverly Act. Just because a recall has been issued does not mean that the Lemon Law does not apply, especially if BMW has had a number of attempts to solve the problem and been unable to do so. Regardless of what you do, ignoring the problem will not make it go away, and may lead to the ultimate nightmare.

Airbags in a car are like the lifeboat on a small vessel. You don’t need them often, but you do need to know that they will work in an emergency. The problem is there is no easy way to test them out, because once deployed they must be professionally repacked.

Several years ago, a man and his wife came into our office. They had purchased a truck advertised to have driver’s and passenger’s side airbags. When their grandchildren came to visit, they looked for a switch (sometimes called a PSIR) that can suppress the airbag when children are present in the front seat. There was no suppression switch. Why? Because there were no airbags! Somehow, the manufacturer had engineered the vehicle in just such a way that the airbag did not fit on the passenger side. Oooops. The manufacturer (in that case GM) later argued that it “forgot” to tell the buyers they had left the airbags out. The vehicle could not be modified to add the airbags later. We filed a class action and, in the end, the owners of thousands of vehicles were entitled to rescind and return their trucks.

Learning that the advertised airbags were missing was like tossing a packed lifeboat into the water only to watch it sink instead of float and deploy. Even with airbags in vehicles, it is wise (and required under California law) to buckle up as well for the best protection in a crash. While they should not be relied on in place of seatbelts, properly manufactured airbags do save lives.

The Center for Auto Safety deserves credit for being an early proponent of airbags, and remains a good source of information concerning the variations in safety records of different brands. Nissan has been no stranger to problems in its sudden restraint systems over the years. For that reason, it was not a total surprise today when NHTSA announced a Nissan recall for nondeployment of passenger airbags in 2005-2007 Infiniti cars. See NHTSA Campaign ID Number 10V175.

The National Highway Traffic Safety Administration reported today that Toyota is recalling certain 2003 Sequoia SUVs for a problem in the vehicle stability control system. Should the problem occur, the Sequoia "may not accelerate as quickly as the driver expects,increasing the risk of a crash." You can read the full recall notice here. The Sequoia was Toyota's first full-size SUV, coming out in 2001. Throughout the model lifetime, it has been marketed for families with children and carpool purposes, so even a remote or minor safety concern has serious implications for family use. The model has gone through a lot of changes since 2001, and for that matter since 2003. For the time being, this notice is limited to the 2003 model year.

Like other recalls, this announcement comes from the Office of Defects Investigation (ODI), a department within the National Highway Traffic Safety Administration (NHTSA). ODI conducts defect investigations and administers safety recalls to support the NHTSA’s mission to improve safety on the nation's highways. ODI also reports on and monitors the adequacy of manufacturers' own voluntary recall campaigns.
Toyota states that it will notify owners. However, most of the affected vehicles are otherwise out of warranty and may have changed ownership several times. For that reason, Toyota may not be able to notify new owners directly. If this applies to you, call the Toyota hotline at 800-331-4331 or go to the NHTSA sponsored website at http://www.safercar.gov.

Today, President Obama urged passage of the financial reform legislation presently before Congress. "Unless your business model depends on bilking people, there is little to fear from these new rules," he declared in a speech at Cooper Union in New York City. The full text of his remarks is posted here

Why then, is the National Automotive Dealer’s Association urging its members to board their corporate jets and fly to Washington D.C. on Monday? Its website announcement reads: “The National Automobile Dealers Association (NADA) is organizing a Dealer Fly-in on April 26 to meet with Senators and urge support for the Brownback Amendment which would exempt auto dealers from the proposed Bureau of Consumer Financial Protection."

Consumers may not have the means to hop a commercial airline, much less a corporate jet, to meet in person with Congress before Senator Dodd brings the Bill (S. 3217) to the floor of the Senate next week. But that doesn’t mean that consumers can’t be heard. All you have to do is call toll free 1-866-544-7573. When you input your zip code at the prompt, you will be connected automatically to your U.S. Senator’s office. A senate staffer on the other end of the line will ask the purpose your call. You should be prepared to say something like this: “Please tell Senator________ [name] to vote to support financial reform that holds banks accountable and creates a strong, independent Consumer Financial Protection Agency. I am against the Brownback Amendment or anything else that excludes car dealers and automotive lenders from this important reform."

Numerous consumer organizations vehemently oppose such an amendment. These include The Military Coalition, Americans for Financial Reform and the National Association of Consumer Advocates, to name just a few. If the financial reform legislation currently under debate is intended to bridge the gap between Wall Street and Main Street, it can’t by-pass the local Auto Mall.

This week, we received notification from NHTSA's Office of Defects and Investigation concerning Ricon wheelchair lifts used in Diamond Coaches. These vehicles are small buses used to transport senior citizens and others who are unable to drive. The defect notices involve nonconformities in the restraint belt and lift software which could result in possible injury to wheelchair occupants. The manufacturer offers a warning label and a user DVD while Ricon attempts to fix the problem. You can find out more about these recall and investigation notices by checking out NHTSA Campaign ID Number 10V106 and 10V109.If, in fact, the occupant in the wheelchair is not secure when lifted into the vehicle, clearly more than a warning is needed.

The market for medical equipment, vehicle modifications and assistive devices, is big business. Health care patients are consumers of medical equipment. The California Lemon Law applies to such goods when purchased for consumers and small businesses. Other California consumer protection laws, such as the Consumer Legal Remedies Act, even offer additional penalties if false advertising or other sales practices target senior citizens or disabled persons who suffer substantial physical, emotional or economic damage thereby. Other statutes protecting against financial abuse of the infirm or elderly can also apply.

The California Lemon Law (the “Song Beverly Consumer Warranty Act”) even has a separate section devoted to wheelchairs, requiring that they “shall be accompanied by the manufacturer’s or lessor’s written express warranty that the wheelchair is free of defects.” In addition, the Act states that every sale of “assistive devices” in California carries an implied warranty that the “device is specifically fit for the particular needs of the buyer.” The definition of “assistive device” excludes eyeglasses, but is otherwise extremely broad.

At the same time, not every manufacturer is liable for vehicle modifications that it does not authorize. So-called “after market” adaptations, if unauthorized, may void the original manufacturer’s new vehicle warranty. The dealer or installer may be the party who is liable if the aftermarket alteration fails.

Seniors, health care patients and disabled persons are especially vulnerable to fraud and abuse. California lawmakers have enacted strong laws to protect this population from deceptive practices and defective products.

Kemnitzer, Barron & Krieg LLP, the host of this California Lemon Law Blog, has just launched a new website with a Q&A section on a variety of consumer protection areas, ongoing consumer alerts, attorney biographies, internet resources, a bibliography and contact links. Check it out here

The firm represents consumers throughout California and has, to date, filed cases in 34 separate California counties. Bryan Kemnitzer, Nancy Barron and Bill Krieg have a combined 99 years experience as trial attorneys fighting to protect consumer rights.

Supported by a dedicated staff, attorneys in the firm have taken individual and class action cases to trial, obtaining verdicts and judgments that include punitive damages and civil penalties. On the other hand, the vast majority of cases settle prior to trial. In settlement, Kemnitzer, Barron & Krieg have obtained debt relief exceeding $300 million, as well as thousands of new car replacements and refunds.

As California consumer lawyers, the members of the firm believe that every consumer is entitled to safe and reliable transportation, fair credit, truth in lending, access to the courts and freedom from fraud. All clients have the opportunity to learn more about consumer protection in ways that increase consumer literacy and save money, as well as resolve the particular case at hand.

Even as Toyota struggles to find the source of sudden acceleration, the U.S. Department of Transportation is offering advice on what do to if sudden acceleration happens while you are driving. Until either the company or federal investigators discover what component is causing the problem, no advice is a sure thing. However, the National Highway Traffic Safety Administration has posted the following steps a driver might take to control the vehicle racing out of control.

Actions Consumers Can Take If They Cannot Stop Their Vehicles

Regardless of the cause, if a consumer is experiencing unintended acceleration intheir vehicle, they should take the following steps:
• Brake firmly and steadily – do not pump the brake pedal.
• Shift the transmission into Neutral (for vehicles with automatic transmissions and the sport option, familiarize yourself with where Neutral is – the diagram may be misleading).
• Steer to a safe location.
• Shut the engine off (for vehicles with keyless ignition, familiarize yourself with how to turn the vehicle off when it is moving – this may be a different action than turning the vehicle off when it is stationary).
• Call your dealer or repair shop to pick up the vehicle. Do not drive it.

You can find more information about sudden acceleration and other recalls here.