WHAT DID TOYOTA KNOW ?
The USA Today has an interesting report that NHTSA was notified by an insurance company, State Farm, of possible defects.
State Farm told the governmental agency that it had seen an increase in the acceleration problems in some vehicles, Toyota and Lexus Models.
If you have an questions about the legal implication feel free to call Carton and Rudnick to have you questions answered
TOYOTA RECALL AND POSSIBLE LEGAL CLAIMS
The questions must be asked!!
What if the manufacturer and/or distributor Toyota Motor Sales was aware that the cars had these defects when distributed to the dealers?
What if the defects were not addressed quickly enough?
What roles did the dealers play and what of the Toyota dealers were aware that the cars had defects and failed to disclose this information to the consumers?
What if the Toyota dealers made misleading disclosures about the known defects to potential purchasers?
Is there a breach of warranty claim even if they fix the problem?
How long have they known about the defect?
Is there a consumer fraud claim under New Jersey law against the dealer the manufacturer or both?
What did the dealers really know about the issues with these cars since they were the ones doing the repair work?
ANSWERS SOON TO FOLLOW
TOYOTA STOPS SELLING CERTAIN CARS
The law firm of Carton & Rudnick is investigating claims that individuals and/or entities have against Toyota Motor Sales for allegations that the vehicle is working improperly. As it has been reported recently, there is a significant recall underway with regard to problems which are currently widely known with various models distributed by Toyota Motor Sales U.S.A.
There is breaking news that there has been political implications for this issue
House Energy and Commerce Committee Chairman Henry Waxman said he would hold a hearing next month to consider "how quickly and effectively" the car maker responded to complaints about sticking pedals and slipping floormats.
Feel free to call the law office of Carton & Rudnick if you have any questions pertaining to your rights or obligations under this recall and the status of any claims that you might have against any entities including the dealership.
On January 21, 2010 Toyota Motor Sales U.S.A. issued a press release indicating there would be a recall of approximately 2.3 million vehicles to fix/correct a sticking accelerator in various specific Toyota Division models.
This press release stated that this action was distinct from an ongoing recall of approximately 4.2 million vehicles, Toyota and Lexus, to reduce the risks of pedal entrapment.
The press release indicates that Toyota had been investigating isolated reports over a lengthy period of time to determine if there was a risk under certain circumstances of danger to the drivers and the public with regard to this pedal condition. This is according to the Toyota website.
According to the Los Angeles Times reported per the internet, ‘Toyota found to keep tight lid on potential safety problems’, and that the website indicated a Times investigation shows the world largest automaker had delayed recalls and attempted to blame human error in cases where owners claimed vehicle defects.
This is per the December 23, 2009 internet posting by Ken Bensinger and Ralph Vartabedian. Apparently, this was discovered in a routine test on a Sienna minivan in April 2003 where the engineers found a plastic pedal could come loose and gas pedal could stick potentially making a vehicle accelerate beyond control.
The article asserts/alleges that in January, six years after discovering the potential hazard, the automaker recalled 26,501 vans made with this old pedal. The article states, ‘The automaker knew of a dangerous steering defect in vehicles including the 4Runner sport utility vehicle for years before issuing a recall in Japan in 2004. But it told regulators no recall was necessary in the U.S., despite having received dozens of complaints from drivers. Toyota said a subsequent investigation led it to order a U.S. recall in 2005’.
The law firm of Carton & Rudnick handles breach of warranty and other various consumer claims against both dealers and manufacturers. If you feel that the dealer and/or the manufacturer made material omissions of fact pertaining to the Toyota that you purchased, contact his office and you will receive a consultation.
The National Highway Safety Administration did an investigation on this issue
This is scary stiff taken from a NHTSA report: Be carefull
Driving home from work, I experienced a sudden uncontrollable surge in
acceleration causing my speed to increase from about 60 mph to 80+ mph.
Immediately I began to brake hard as I was rapidly approaching traffic just
ahead of me. Fortunately the inside left lane was unoccupied and I was able to
make an immediate lane change. Initially I depressed the brake pedal as hard as I
could using both feet but only managed to slow the vehicle to 40-45 mph. With
my speed reduced, I alternated between pumping the accelerator pedal and
pulling up on it from the underside with my right foot as it became clear that the
throttle was stuck in an open position. The vehicle continued to speed back up to
over 65 mph with less pressure on the brake pedal.
With traffic just ahead of me, I moved over to the left shoulder next to the
center barrier and continued to try to release the open throttle. There were
clouds of smoke around the vehicle and the smell of burning materials from the
overheating brakes. After finally getting the vehicle slowed down to about 25-30
mph, I shifted into “Neutral” and depressed the start/stop push button a number
of times hoping to stop the engine but nothing happened. Instead the RPMs
moved up into the redline range on the tachometer. I quickly shifted back into
“Drive”; the vehicle jolted and rapidly accelerated to 60+ mph.
As the brakes were fading quickly, I was certain that I would need to shift
back into “Neutral” and let the engine blow up to stop the vehicle. Suddenly the
acceleration surge stopped and I was able to bring the vehicle to a stop about 1 ½
to 2 miles from where it had started. I quickly shifted into “Park” and depressed
the start/stop push button to turn off the engine. The vehicle seemed to shutter as
I did so. Upon restarting the car, I drove cautiously to Lexus of Wayzata a short
distance away fully prepared to shift into “Neutral” if the acceleration repeated.
The car remains there over 5 weeks later.
This news story indicates that repossessions and charge offs are way up:
There are very high tech methods to grab you car. Check out this video. They will find your car!!
More repo man
CONSUMER FRAUD CLAIMS AND MOVING COMPANIES
It is not uncommon that people make claims that a moving company has committed fraud or consumer fraud. These claims are usually in the context of improper or inaccurate estimates, improper or inappropriate moving practices and improper or inappropriate billing practices.
As an example, one person might claim that they were quoted one price and were required to pay a different price upon delivery of their goods. There are specific Administrative Code sections applicable to moving companies in the State of New Jersey. However, these regulations, would not be deemed the only avenue of potential standards against a moving company. The generalized New Jersey Consumer Fraud Act and deceptive and inappropriate conduct contained under the New Jersey Consumer Fraud would also be applicable to moving companies. As an example, if a moving company were to make an affirmative misrepresentation of fact as to a specific quote and then were to hold goods for ransom if additional monies were not paid, this could potentially be deemed a violation of the New Jersey Consumer Fraud Act, inappropriate conduct and actionable conduct under the New Jersey Consumer Fraud Act. What the ascertainable loss which is a requirement under the New Jersey Consumer Fraud Act would be an entirely different question.
Thus, when engaging a moving company, make sure that you get all representations in writing and also representations that this is a final and full quote. Many people have contacted my office while the moving companies are in possession of their goods and refusing to deliver the goods unless the consumer signs some additional documentation which indicates that additional charges are appropriate, additional card credit charges authorization are appropriate or a complete release from all liability is signed. Unless the moving company gets this documentation, generally they will not deliver the goods. This places the consumer in a very awkward and uncomfortable position dealing with a moving company that is in possession of their entire inventory of household goods.
If a moving company were to damage goods as opposed to making affirmative misrepresentations of fact, this would be a completely separate claim. There are various limitations against moving companies pertaining to the destruction of goods and the transportation process. This is also known as the Carmack Amendment.
Nonetheless, moving companies are subject to the reaches of the New Jersey Consumer Fraud Act and the liberal construction of the New Jersey Consumer Fraud Act to benefit consumers who have been duped or lied to by moving companies.
REPOSSESSION, CAUSES OF ACTION
Under New Jersey law, a company who is repossessing a consumer vehicle has an obligation to comply with all applicable laws. This means that if a repossession company breaches the peace in the context of repossession, the individual who has been aggrieved by this act would have a claim against both the repossession company and the finance company who hired this repossession company. The duty to make sure that there is no breach of the peace is a non-delegable duty. This means that the finance company who has owed the money is ultimately responsible for the actions of the repossession company to make sure that all of the laws are complied within the context of repossession.
Ultimately, the repossession company usually carries an extensive insurance company to cover any conduct with regard to improper repossession. Therefore, if the repossession company, the marketing company and/or the finance company are sued in the context of an improper or wrongful repossession, it is ultimately the insurance company from the repossession company who will be responsible for any and all losses. Many times there are agreements between the repossession company and the finance company with regard to repossession. This means the repossession company has agreed to be responsible, in writing, for any damages associated with the wrongful or inappropriate repossession of a vehicle. This is the way the finance companies protect themselves, with the signed agreement, with repossession company to make sure that there is insurance coverage to cover the finance company. As an example, if a repossession company were to get to a fight with the owner of the vehicle, break in to the owner’s house or conduct other illegal or inappropriate actions, the finance company could ultimately be responsible for any damages in this case since the duty is a non-delegable duty with regard to the repossession. There is also frequently an intermediary company which is hired by the finance company for form out the repossession to another party. Therefore, when investigating these claims, there are frequently additional parties which are not disclosed at the time of the repossession.
The Uniform Commercial Code contains most of the rights and remedies for those being aggrieved of a wrongful repossession. The New Jersey Consumer Fraud Act would also apply to the wrongful repossession of an automobile. The Uniform Commercial Code contains specific statutory damages if there were to be a wrongful repossession. Statutory damages are required damages to be awarded by the Court if the plaintiff were to prove a wrongful repossession. This is one of the benefits to making these claims. However, there is some dispute under the Uniform Commercial Code as to whether or not attorney’s fees would be recoverable under the Uniform Commercial Code for a wrongful repossession. Nonetheless, the statutory damages could potentially equal the amount of the finance charge with a 10% add-on pursuant to the Uniform Commercial Code. It is likely that any conduct which would violate the Uniform Commercial Code would also violate the New Jersey Consumer Fraud Act or the Truth in Contract and Warranty Act. As an example, if the repossession company were to lie to an individual who is having the vehicle repossessed stating that they were with the police or an official agency, they would probably be subject to violations of the New Jersey Consumer Fraud Act as well as the Uniform Commercial Code.
Thus, if a seller of an automobile says that the vehicle has not been in an accident, in fact it has been in an accident, that is an affirmative misrepresentation of fact which is false and inherently has the capacity to mislead a potential purchaser of the vehicle. This should be an actionable representation contemplated under the New Jersey Consumer Fraud Act for which the plaintiff would be entitled to damages if a case was proved. There are other ways to prove a consumer fraud under the New Jersey Consumer Fraud Act where good faith might be a defense. As an example, if a plaintiff is claiming a material omission of fact, the plaintiff would be required to prove intent to pursue a claim under the New Jersey Consumer Fraud Act. However, when the plaintiff is alleging an affirmative misrepresentation of fact, good faith is not a defense. As an example, if a dealer were to state that a vehicle was not in an accident and in fact was in an accident, even though they were relying upon a CARFAX or other industry accepted databases or documentation, they would not have a valid defense under the New Jersey Consumer Fraud Act.
As an example, there is a case under New Jersey law called Cuesta v. Classic Car. In this specific case, the seller of an automobile sold a vehicle with an inappropriate or improper odometer reading. The Court held that the improper odometer reading created a ‘misrepresentation of fact’ which was actionable under the New Jersey Consumer Fraud Act. Dealer claimed they were unaware of this rollback, however, this is not deemed a valid defense. This is consistent with the liberal interpretation of the New Jersey Consumer Fraud Act and the decision by the legislature to place the burden on a business to make sure that the product that they sell is in fact consistent with any representations set forth by the selling dealership or business.
A consumer should be able to rely upon the representations from the business since they are the experts in the field in which the consumer is dealing. It is an entirely separate post to quantify the amount of loss where the appropriate procedure or guidelines for pursuing a claim for consumer fraud under the New Jersey Consumer Fraud Act. However, this post just demonstrates types of claims which can be sued and the obligations upon a business when selling a vehicle product or other consumer goods.
DECEPTION AND THE NEW JERSEY CONSUMER FRAUD ACT
The New Jersey Courts have determined and held that the defendant’s acts of good faith are not necessarily a defense to a consumer fraud action. The Courts have held, as set forth in the Model Jury Civil Charges that it is the capacity to mislead that is the important aspect of consumer fraud. What exactly is the capacity to mislead in the context of a consumer transaction?
The business, who sells a product, including a car, is charged with the knowledge of all the associated Administrative Code Regulations. The seller of an automobile or a product is assumed to be knowledgeable in the industry in which they sell a specific product such as a vehicle. Thus, the seller of a product or a vehicle in making certain representations pertaining to that product have a duty/obligation to make sure that those representations and warranties with the product are accurate, complete and not misleading in any way. As previously set forth, it is the capacity to mislead that is important in a consumer fraud claim. Thus, the defendant in a defense to a consumer fraud claim cannot say we did not know, we were not sure or we did the best we could. Again, good faith is not a defense to certain claims under the New Jersey Consumer Fraud Act. The seller of a product is better suited than the purchaser of a product to assure that the representations pertaining to the product are in fact accurate and thus the consumer is not misled.
