Lemon Law Lawyer Blog

A periodic feature of this blog is a summary of the current Monthly Defect Report from The National Highway Traffic Safety Administration. This post will look at the Report for the month of July 2008.

NHTSA is still looking at the engine compartment fire concern in the 2007 Chrysler pacific with the 4.0Lengine. This Engineering Analysis was opened on February 21, 2008.

In March, NHTSA opened an Engineering Analysis on 2005-2006 F-250 and F-350 Super Duty 4.4 vehicles for a “violent front end oscillation.” Many lemon law lawyers report having several F-250 and F-350 cases with engine problems and it will be interesting to see what this EA reveals.

NHTSA is also opened an Engineering Analysis on 2006-2008 Hummer vehicles. The reason for this Engineering Analysis is to determine why there have been non-crash engine compartment fires. This engineering analysis was opened on June 12, 2008.

NHTSA also opened several Preliminary Evaluations. A Preliminary Evaluation is the precursor to the Engineering Analysis and determines whether an Engineering Analysis is begun. Most interesting is a Preliminary Evaluation that was opened on April 28, 2008 for an engine stalling complaint (due to fuel pump failure) in 2007 BMW 335i's. The 335i is a popular vehicle and it will be interesting to know what the Preliminary Evaluation turns up. NHTSA has also opened up a preliminary evaluation on the 2005-2006 Nissan Armada and Titan. This preliminary evaluation will explore engine compartment fires in the Armada and the Titan. It was opened on May 30, 2008.

For those of you who follow the motorhome industry, Country Coach, Inc., a designer and manufacturer of luxury motorhomes has had a Preliminary Evaluation opened on their 2007-2008 Affinity’s. Consumers have reported that the 2007-2008 Affinitiy’s can suffer from loss of power steering assist. This preliminary engineering evaluation was opened on July 24, 2008.

NHTSA also does something called a Recall Query known for short as an “RQ.” An RQ is where NHTSA monitors recalls to ensure that the scope, completion rate, and remedy are adequate. There are currently four Recall Queries open. The 1998-2003 Mercedes M Class power steering hose leak recall, the 2004 Ford Explorer and Mercury Mountaineer lift-gate glass hatch hinge failure, the 2005 - 2007 Bluebird Body Model 450 LXI WanderLodge, and the 2005 Dodge Durango fuel spit back during refueling.

Monthly Defect Investigation Reports are an important function of the National Highway Traffic Safety Administration. That they are so conveniently available on the Web is a boon to consumers.

Most everyone has heard of “recalls.” Recalls are, generally speaking, warning notices from manufacturers to consumers of a “known defect” in a certain year, make and model of vehicle. Closely related to “recalls” are technical service bulletins, known in the industry as TSBs.

TSBs are documents that manufacturers provide to their dealerships alerting the technicians that certain models may have a tendency to exhibit specific defects. These service bulletins usually recommend a method for repairing the defect. TSBs can be short and simple, or long and quite technically complex.

Lemon law cases can be made stronger by the existence of a TSB that relates directly to defect in question. A solid TSB that is, as we say in the law, “on point” can defeat the following, common types of defenses: 1) the manufacturer or dealer claims that your car is “operating normally” or “within specifications;” 2) the manufacturer or dealer claims that you caused the problem by aggressive driving or after-market modifications; or 3) the manufacturer or dealer claims that they have repaired your car successfully, when it is clear that they haven’t even applied the TSB yet.

In some situations, the dealer will have performed the repairs suggested in a TSB on your vehicle, but the car still acts like a lemon. There are a couple of obvious reasons for this. 1) the dealer may not have performed the TSB correctly; 2) the TSB may not actually be a sufficient fix – in this case, look for updated TSBs from the manufacturer; or 3) The dealership is performing the TSB correctly, but has mis-diagnosed the real problem with your vehicle. This list is not comprehensive, but it should provide you with a starting point.

Sometimes, the dealership will disclose the TSB to the consumer, but oftentimes dealerships never reveal to their customers that the vexing problem for which they keep coming back is a “known problem” that affects many more cars than just theirs. Fortunately, everyone can gain access to most manufacturer’s TSBs. To do this, you go to National Highway Traffic Safety Administration website, and choose the year, make and model of your vehicle using a series of drop down menus. The site will provide lists of all TSBs as well as all recalls and all consumer complaints.

The National Highway Traffic Safety Administration has published its Monthly Defect Report for the month of November 2007.

There are a few notable investigations pending. For example, on October 19, 2007, NHTSA opened an investigation on the 2007 Chrysler Pacifica for an engine compartment fire concern. The investigation is in the Preliminary Evaluation (PE) phase, which is the initial phase of a NHTSA investigation. As defined by NHTSA, a "PE is prompted after a review of consumer complaints and/or manufacturer service bulletins suggest a safety defect may exist. The results of a PE determine whether the investigation will be upgraded to an Engineering Analysis or closed. Most PEs are resolved within four months." NHTSA describes the reason for the investigation on the 2007 Pacificas as follows: “complainants allege that a fire erupted under the hood of the vehicle while they were driving the vehicle and without warning. The fire began on the driver's side, near the front of the vehicle. The agency has received two vehicle owner complaints alleging a fire, and some early warning reporting (EWR) data. This preliminary evaluation has been opened to further assess the potential safety consequences associated with the alleged defect.”

On February 14, 2007, NHTSA opened an Engineering Analysis on 2006-2007 Dodge Durangos for side curtain air bag failure. NHTSA investigators discovered the problem during testing and describe it as follows: “The metal gas distribution tube in the side curtain air bag assembly may fracture during deployment resulting in failure of the air bag to deploy properly.” The Engineering Analysis stage is defined by NHTSA as the “second and final phase of a NHTSA investigation, an EA is undertaken if data from a PE indicate further examination of a potential safety defect is warranted. The results of an EA determine whether a safety recall should be initiated or the investigation should be closed. Most EAs are resolved within one year.”

Also at the EA stage is a complaint of wheel failure in the 2005-2007 Nissan 350Zs. Initially, the Office of Defects Investigation (ODI) opened pe06-050 based on two consumer complaints alleging incidents of wheel separation while driving due to spoke fracture. One of the incidents resulted in a crash and serious injury when the separated wheel struck a California Highway Patrol Officer on the opposite side of the freeway. Nissan claims that the problem was caused by an after-market “re-chroming” process, but ODI also found incidences of cracking in original Nissan alloy wheels. ODI is continuing the investigation, because it wants to determine what is causing the problems in the original equipment.

The work of ODI is critical to the safety of motorists. It can also be helpful to consumers who have lemon law claims. Through its collection of consumer complaints, manufacturers' technical service bulletins, and accident data, ODI has amassed a storehouse of information on almost all makes and models of vehicles. While this information may not be admissible in court, it can be very instructive to both the consumer and the consumer’s attorney and should be consulted when considering a lemon law claim.