KRISTINA PASCARELLA AND ANNA D’ ANTONIO, Petitioner,
v.
GENERAL MOTORS COMPANY, INC. Respondent.
Decided: September 29, 2021
BEFORE JULIO C. MOREJON, ALJ: STATEMENT OF THE CASE
Petitioner, Kristina Pascarella (Pascarella), filed a New Lemon Law Dispute Resolution Application (Lemon Law Dispute) with the New Jersey Division of Consumer Affairs (Division) on September 18, 2020, seeking relief under the provisions of N.J.S.A. 56:12-29 to -49 (Lemon Law) for her 2020 Cadillac CT6-V (Cadillac), manufactured by respondent, General Motors, LLC (GM).
PROCEDURAL HISTORY
On September 17, 2020, Pascarella filed a Lemon Law Dispute with the Division.
On or about February 26, 2020, Pascarella leased a 2020 Cadillac CT6 (“Cadillac”) from Malouf Chevrolet Cadillac, Inc. (“Dealer”) (R-1). 2
The Lease Agreement provided a residual value of $54,793.20. (Id.).
Cadillac was taken to the Dealer for repairs on the following dates and reflecting the vehicle millage therein:
May 11, 2020, vehicle milage 4451. June 8, 2020, vehicle milage 5998, June 19, 2020, vehicle milage 6906, June 26, 2020, vehicle milage 7192
On May 11, 2020, Pascarella brought the Cadillac to the Dealer complaining of the following items:
A) rear spoiler is loose;
B) Back passenger door sill pact on bottom is loose;
C) Brakes squeak. (R-2).
On June 26, 2020, Pascarella brought the Cadillac to the Dealer complaining of the following:
Customer states brakes make a squeaking [sic] noise and a grinding sensation when coming to a stop, customer states when the grinding noise takes place vehicle begins to shake/vibrate. Check engine light is on, and
Stabilitrac message is on (R-5).
On July 3, 2020, the Dealer reported as to the items:
Cause: Brakes squeaking [sic] due to front pads glazed casing nose. Front disc brake pads replacement. No brake noises heard after repair.”
Front Wheel speed sensor replacement, and
Stabilitrac codes set. Front ABS wheel [sic] speed sensor shorted. Front Wheel speed sensor replacement. No code set after repair (Id.).
On August 17, 2020, Pascarella brought the Cadillac to the Dealer complaining of the following:
Brakes squeal all the time brakes make a grinding noise on a slow stop hears metal on metal noise brake system light comes on at times;
Brakes make squeak, grinding noise and vibration also when braking (R-6).
The Dealer’s response to Pascarella’s concerns were: “GM FSE came down to inspect vehicle GM to contact customer with guidance and answer any questions (Id.).
On August 18, 2020, GM Field Service Engineer (FSE) Robert A. Heintz, (Heintz) conducted an inspection of the Cadillac concerning Pascarella’s complaints (Id.).
On September 1, 2020, Heintz reported he found the following:
“excessive wear on the four tires; brake pads and rotors were replaced by the Dealer at 7192 miles; average life of front brake pads is twenty-five thousand (25k) miles; service brake system message due to DTC C116B 5A can be set off because of law brake pads; found excessive rear brake pads usage and rear brake pads should be monitored;
Road tested vehicle around the parking lot for roughly 10 minutes with significant light and heavy application of the brakes with no noise or vibration present.
- Expert Testimony
Edward Clayton, (Clayton), testified on behalf of Pascarella, as an expert auto mechanic. Clayton is an ASE master technician, with over thirty (30) years’ experience as an auto mechanic. Clayton was a master technician with Toyota and Lexus for twenty (20) years. Clayton testified that he has no formal training from General Motors on the vehicles it manufactures, and that he has never performed any repairs on a 2020 Cadillac CT6V. On direct examination, Clayton confirmed that he had conducted an inspection of the Cadillac on December 4, 2020, and that that during the road test, the brakes applied normally, and the vehicle stops normally with normal brake pedal pressure applied (P-4). He stated there were some minor squeaks and rattles from the brake system heard consistent with the operation of brake pads.
Clayton testified that when he examined the Cadillac, he “found the brakes worn out.” Clayton stated that Cadillac had approximately 10,000 miles on it at the time of the inspection and that the brakes had been replaced at approximately 7,000 miles. He observed that he had “never seen brakes worn to that extent with 3,000 miles” of use. Clayton opined that the brakes “generally do not wear in 3,000 miles” and that such wear would not occur without there being a problem with the vehicle.
Clayton testified that he did not see any signs of abuse or misuse of the Cadillac. He stated that he generally looks for “wheel spin, radial, scoring on the tires which indicate tire spinning,” but he did not see “melted rubber or anything” or evidence that Pascarella “was driving extremely aggressively, performing donuts, anything like that” Clayton opined that brakes generally do not wear in 3,000 miles, and that based upon his examination of the Cadillac, the vehicle’s brake system was defective. On re-direct, Clayton stated that based on his examination of the Cadillac and his opinion as to the same, he would not recommend that a consumer pay full price for the vehicle or buy it at all.
On cross-examination, Clayton stated that it was his opinion that the replacement pad installed by the Dealer on the Cadillac 3,000 miles prior to his inspection were defective. Clayton testified that he could not opine as to the original brake pads that were replaced at 7,000 miles as he did not get to inspect them, and he did not know how worn they were at replacement. He stated that if the original brake pads were worn the same as the replacement pads “it would seem that something is getting worse, because the original ones had lasted 7,000 miles and these second pads lasted 3,000 miles.”
On cross-examination, Clayton stated that “brakes were working normal when I road tested it.” Clayton confirmed that his inspection of the brakes revealed “some minor squeaks and rattles from the brake system” and that his inspection of the Cadillac revealed no determination as to the cause why the brakes were wearing out prematurely. Clayton stated further that his inspection of the vehicle revealed that the condition of the brakes provided Pascarella with “safe and reliable transportation.” In response to questions from the undersigned, Clayton testified that it was his opinion that the brake pads wore out prematurely at 3,000 miles, which he opined is extremely quick to wear brake pads, but the brakes were operating normally otherwise.
Kristina Pascarella
Kristina Pascarella (Pascarella) testified that she resides in Staten Island, New York and she is a registered in New York State. She stated that her daily drive to work is approximately twenty-minutes. She testified that she uses the Cadillac to commute to work and for leisure. Pascarella testified that she wanted a Cadillac vehicle as she was seeking an “upgrade” from her Nissan. She denies ever having to replace brake pads on her Nissan every 3,000 miles. Her expectations in owning a Cadillac was that it would be “something exciting” to own because of its look and drive and it was a “step up” from the Nissan.
Pascarella testified that she picked up the Cadillac from the Dealer on February 26, 2020, and that sometime in the end of March 2020 she began to experience problems. She stated that her boyfriend took the car to the Dealer complaining of the brake noise and was told that there was “brake dust” on the brake and no work was performed by the Dealer. Pascarella stated that she first brought the vehicle to the Dealer for repair on May 11, 2020, complaining of “squeaking brakes” that was very loud. Pascarella then testified concerning the dates that she took the Cadillac to the Dealer for repairs of brake noise and vibration as: May 11, 2020 (R-2); June 8, 2020 (R-3), June 14, 2020 (R-4), June 26, 2020 (R-5) and August 17, 2020 (R-6).
Pascarella testified that she kept bringing the Cadillac to the Dealer with the same complaints and the problem was not resolved concerning the brake noise and vibration. She stated that the Cadillac’s brake issue shook her “confidence in the vehicle” as she did not feel comfortable driving the vehicle because she did not know what was wrong with the brakes.
Pascarella testified that she “was nervous” driving the Cadillac because of the continued brake noise and vibration. Pascarella testified further that the Cadillac’s brake issue caused her to carpool to work for over a month, rather than drive it. She stated that she used to drive the Cadillac to go out with friends and visit her family in New Jersey, but that she had lost confidence in the vehicle and did not do the same after the last repair visit.
As to her driving style, Pascarella testified that she was not an aggressive driver and that she drove her Cadillac in the same manner that she drove her Nissan. She stated that her driving history is uneventful and that she does not have any tickets for speeding. Overall, Pascarella stated that she would not have leased the Cadillac had she known she would have all of these “problems” with the vehicle.
On cross-examination, Pascarella testified that the Cadillac lease was for 12,000 miles per year, and that she co-leased the vehicle with her mother, Anna D ’Antonio. She stated that she was the primary driver and that her boyfriend does not drive the Cadillac. She affirmed that the brake noise started in late March 2020 and that her boyfriend took the car to the Dealer for repair. Pascarella testified that the brake issue did not cause her to swerve or lose control when braking the vehicle.
Pascarella testified that she only took the Cadillac to the Dealer on the dates stated in her direct testimony and as reflected in the repair orders. She did admit taking the vehicle to another dealer, McGuire Chevrolet, but it was not related to the brake issue. Pascarella stated that the only problem that the Cadillac continues to have concerns the brake noise and vibrations.
Robert Palumbo
Business Resource Manager, Robert Palumbo (Palumbo) testified on behalf of GM, and was qualified as an auto mechanic expert. Palumbo testified that he has been in the automotive business for over thirty-five years; he has been an automotive technical trainer for twelve-years; ASE certified master automotive technician with multiple endorsements for thirty-five years; he has been employed by General Motors for ten years.
Palumbo sated that he is familiar with the design and operation of the 2020 Cadillac CT6V. Palumbo testified that the Cadillac Limited Warranty (R-1) covers the following:
“repairs to correct any vehicle defect, not slight noise, vibrations or other normal characteristics of the vehicle due to materials or workmanship occurring
during the warranty period.”
Palumbo then testified that damage to the vehicle due to “due to accident misuse or alteration” is not covered in the Cadillac’s Warranty. (Id.) Finally, Palumbo testified that “normal tire wear or wear out is not covered” in the vehicle’s Warranty. (Id.)
Palumbo testified that the expected thread wear of the Cadillac’s Goodyear tires is 22,500 miles and the expected brake pad life on this vehicle is 28,000 miles. Palumbo testified further that he has not seen pre-mature pad wear, such as the subject vehicle, on other Cadillac 2020 CT6V. Palumbo testified that the repair orders for the Cadillac show that times sensors were replaced twice, and brake pads replaced once (R-2 through R-6).
Palumbo then rendered opinions regarding the Cadillac’s brake pad usage. He testified that in his thirty-five years of being an auto mechanic he has not seen brake pads wear as they did on Pascarella’s vehicle absent aggressive driving. Palumbo stated that brakes and tires are “wear items” that are “consumed” through the routine operation of the vehicle and their longevity is determined by “operating driving style.”
Regarding the “glazing” reported on the Cadillac’s brake pads, Palumbo testified that glazing on a pad or rotor has to do with the “rock well hardness of the two surfaces pressing against one another, it’s a polishing affect.” Palumbo testified further that heat does cause glazing and that what causes heat as it relates to the braking system is “friction between the pad surface and the rotor. Palumbo then stated that “hard stopping” can cause heat as “Too much heat can be caused by brakes that are actually dragging as a result of snow or salt corrosion. Brakes can go through and be influenced by the operator of the vehicle.”
Finally, Palumbo testified that based upon his review of the Cadillac’s repair records and the written reports of Pascarella’s expert and GM’s expert regarding brake pad wear, he found “objective proof” of abusive or aggressive driving by Pascarella.
On cross-examination, Palumbo stated that his opinion was based exclusively on his review of the repair records and the respective expert reports of Pascarella and GM; the lack of history of similar brake pad usage in other Cadillac CT6V. Palumbo testified that he had not physically inspected the Cadillac, and he had not conducted a test drive of the vehicle in rendering his opinion.
Palumbo testified that his opinion regarding the estimated life of brake pads, under normal wear was based upon his years of experience combined with a lack of negative reports of similar brake issues of other Cadillac CT6V. Palumbo testified further under a “normal driver” standard for Pascarella her Cadillac’s brake pads should not have worn out prior to their expected life expectancy of 28,000 miles, and he attributed the same to Pascarella’s “aggressive driving.”
Robert Heintz
Robert Heintz (Heintz) testified on behalf of GM. He is a Field Service Engineer, and he has been employed with GM since 2003. Heintz testified that from 2003 to 2008 he was a technician at a Chevrolet dealership; from 2008 to 2010 he was a field tech line consultant for General Motors and from 2010 to current, he has been a field service engineer for General Motors. Based upon his training and work experience, Heintz was recognized as an expert witness in auto mechanic.
Heintz testified that he performed the final repair attempt of the Cadillac on August 17, 2020 and prepared a report regarding his findings (R-7). Heintz testified that he road-tested the vehicle and found a “slight vibration in the vehicle. No excessive noises”, and that the Cadillac did brake as he would expect, “nothing out of the normal.” Heintz stated that based on his findings, no repairs were performed on the Cadillac during the final repair attempt.
Heintz testified that his inspection of the Cadillac confirmed that there was no defect in factory materials or workmanship present in the vehicle that was causing Pascarella’s brake noise concern. Heintz stated that he found no issues with the brake calipers, no issues with corrosion, and no diagnostic trouble codes that indicated that there was a defect in any of the Cadillac’s brake components that are monitored electronically by the vehicle’s onboard modules. Heintz stated that the only code that was found in the Cadillac was a “DTC 116B 5A” code, which can be set off when the brake pads are low.
Heintz testified further that at the time of his inspection of the Cadillac, the front brake pads had recently been replaced by the Dealer and were relatively new, but the rear pads showed “excessive rear pad wear present” which required monitoring and possible replacement.
Heintz testified further that in addition to the rear brake pads showing wear, all four tires were “excessively worn”. Heintz testified that it was his opinion that the brake pads on the Cadillac were worn excessively due to “aggressive driving” by Pascarella and not a manufacture’s defect. In response to direct examination as to “why” he had made such an opinion, Heintz responded that it had to do with “how quickly the front pads had worn, how quickly the rear pads has [sic] worn and how quickly the tire tread has worn.”
Heintz testified that at approximately 8,500 miles the tires had worn “beyond the point of safe use” when he expected the tires to last approximately 10,000 miles. On cross examination, however, Heintz admitted that the tires in question still had 2/32” of tread remaining and were thus “not worn out”.
On questioning by the undersigned regarding Heintz’s opinion that excessive wear of the brake pads was attributable to “aggressive driving”, and his definition of the same, he provided the following response:
So it could be anything from in stop and go traffic from heavy acceleration to heavy braking repeatedly as well as track racing, as well as –- some people have a driving habit of constantly being on and, off the brakes, or on and off the accelerator pedal more than normal and I would attribute that to an aggressive driver….Higher rates of speed into a turn, a lot of factors.
[Tr.at 132:15-25]
On further questioning by the undersigned regarding Heintz’s conclusion that “aggressive driving” was the cause of the excessive brake wear, and not a mechanical defect, he responded:
Yes, correct, with the onboard diagnostics the vehicle has it’s extensive, so if there was an issue with the brake system we would know about it and then as well as physically driving the vehicle, if there was any kind of sticking brake pedal, sticking brake booster, master cylinder, caliber, would have been evident during the road test. I would have had some type of deceleration affect [sic] while it wasn’t on the accelerator pedal, or it would have pulled to one side while I was braking, generally mechanical failures like that don’t come and go to the point where you don’t feel it during the road test.
[Tr. at 135:7-18]
FINDINGS OF FACT
I FIND the testimony of Clayton to be credible and reliable concerning his examination of the subject vehicle, reliance upon data, and expert analysis in rendering his opinion concerning his finding of excessive brake wear, and I therefore, FIND the same as FACT herein.
I FIND the testimony of Palumbo regarding his review of the reports prepared by Clayton and Heintz, and his testimony regarding his analysis and opinion in determining the cause of the excessive brake wear, to be credible and reliable, and I therefore, FIND the same as FACT herein.
I FIND the testimony of Heintz to be credible and reliable concerning his examination of the subject vehicle, reliance upon data, and expert analysis in rendering his opinion concerning the cause of the excessive brake wear, and I therefore, FIND the same as FACT herein.
I FIND the testimony of Pascarella to be consistent and therefore credible concerning her use of the Cadillac for work and leisure, and her observations concerning the Cadillac’s response to the application of the brakes, and I therefore, FIND the same as FACT herein.
LEGAL ANALYSIS AND CONCLUSION
The “Lemon Law” statute, as enacted in the State of New Jersey, recognizes that the purchase (or lease) of a new motor vehicle is a costly consumer transaction and that the inability to correct defects in these vehicles creates both “ . . . a major hardship and an unacceptable economic burden on the consumer.” N.J.S.A. 56:12-29. The law, as amended and approved October 1, 2009, provides that should a consumer report a defect or condition (defined under N.J.S.A. 56:12-30 as a “nonconformity”) to the manufacturer or its dealer which substantially impairs the use, value or safety of a motor vehicle during the first 24,000 miles of operation or during the period of two years following the date of original delivery, whichever is earlier, then the manufacturer shall be obligated to make all repairs necessary to correct the defect or condition. N.J.S.A. 56:12-31. If the manufacturer or its dealer is unable to repair or correct the nonconformity within a reasonable time, then the manufacturer shall accept the return of the vehicle, and reimburse the consumer the purchase price and other costs and expenses allowed by statute, less a reasonable allowance for the use of the vehicle. N.J.S.A. 56:12-32(a).
The law creates a statutory presumption in favor of the consumer when the manufacturer or its dealer is unable to repair the nonconformity within a reasonable time if, within the first 24,000 miles of operation or within two years following the date of delivery on the purchase (or lease) of the vehicle, whichever is earlier:
substantially the same nonconformity has been subject to repair three or more times by the manufacturer or its dealer, other than a nonconformity subject to examination or repair because it is likely to cause death or serious bodily injury if the vehicle is driven, and the nonconformity continues to exist; or
the motor vehicle is out of service for repair of the nonconformity for a cumulative total of twenty or more days since its original delivery to the consumer and the nonconformity continues to exist or a nonconformity which is likely to cause death or serious bodily injury if the vehicle is driven has been subject to examination or repair at least once by the manufacturer or its dealer, and the nonconformity continues to exist.
3 N.J.S.A. 56:12-33.
Before the presumption arises, however, the consumer must serve written notice, by certified mail return receipt requested, upon the manufacturer, giving the manufacturer one last chance to repair the defect or condition within ten days following receipt of the notification. N.J.S.A. 56:12-33(b); N.J.A.C. 13:45A-26.5.
If the manufacturer fails to repair such defects or conditions within a reasonable period of time, the consumer is then entitled to a speedy administrative remedy. N.J.S.A. 56:12-37. Remedial legislation, such as the Lemon Law, must be liberally construed “in the light of the mischief to be corrected and the end to be attained.” Illario v. Frawley, 426 F Supp. 1132, 1136 (D.N.J. 1977); Carianni v. Sewenker, 38 N.J. Super. 350, 361 (App. Div., 1955).
It is, however, an affirmative defense that the alleged nonconformity does not substantially impair the use, value, or safety of the motor vehicle, or that the nonconformity is the result of other factors not caused by the manufacturer or its dealer. N.J.S.A. 56:12-40. Only defects which rise to the level of “nonconformities,” as defined by statute, will qualify a vehicle for treatment as a “lemon.” Anastasio v. Mitsubishi Motor Sales of Am., OAL DKT. NO. CMA2100-90 (April 23, 1990).
Relief cannot be awarded if a defect is proven, but such is not demonstrated to be substantial. There must be proof of uncorrected defects “substantially” impairing the use, value, or safety of a motor vehicle. N.J.S.A. 56:12-29. “Nonconformity” is a defect or condition which “substantially” impairs the use, value, or safety of a motor vehicle. Id. at § 30; N.J.A.C. 13:45A-26.2; Citarella v. Chrysler Motor Co., 93 N.J.A.R.2d (CMA) 53. Although the determination of whether a defect is substantial is “not purely ‘objective,’” Berrie v. Toyota Motor Sales, USA, 267 N.J. Super. 152, 157 (App. Div. 1993), the consumer’s assessments must “ . . . have some basis in objective fact.” Flag Wharf v. Mercedes-Benz, USA, CMA 5770-03, Initial Decision (August 1, 2003), http://njlaw.rutgers.edu/collections/oal/; see also Herbstman v. Eastman Kodak Co., 68 N.J. 1 (1975); Citarella, 93 N.J.A.R.2d 53.
It is the consumer who bears the burden of proof, by a preponderance of the credible evidence, to establish that the nonconformity continues to exist despite repair attempts by the manufacturer, and that the nonconformity “substantially impairs the use, value, or safety of the vehicle”. N.J.S.A. 11A:2-21; 3 N.J.A.C. 4A:2-1.4(a); In re Polk, 90 N.J. 550 (1982); Atkinson v. Parsekian, 37 N.J. 143 (1962). Precisely what is needed to satisfy the standard must be decided on a case-by-case basis. The evidence must be such as to lead a reasonably cautious mind to a given conclusion. Bornstein v. Metropolitan Bottling Co., 26 N.J. 263 (1958).
The lingering question in this matter is what caused the brakes to wear excessively? All experts agreed that there was no mechanical defect of the brakes. Although Pascarella testified about her concerns regarding the noise and vibration of the Cadillac when applying the brakes, satisfying the substantial impairment standard must include not only the buyer or lessee’s subjective assessment of the condition, it must also include an objective assessment of the concern complained of. Herbstman v. Eastman Kodak Company, 68 N.J. 1, 9 (1975).
While Pascarella’s expert, Clayton, opined that the brakes “generally do not wear in 3,000 miles” and that such wear would not occur without there being a “problem” with the vehicle, he could not establish what the “problem” was with the vehicle. Especially absent from both Clayton’s report and his hearing testimony is any opinion that the vehicle’s use, safety, or value was impaired to any degree. Instead, during cross-examination, Clayton admitted that the vehicle was perfectly capable of providing safe and reliable transportation at the time of his inspection.
Here, the proofs, and testimony reveal that Clayton, while finding that the rear brake pads and tires had worn excessively, like GM’s experts, Palumbo and Heintz, he found no defective issues with the brake calipers or brake fluid, and when Clayton road-tested the Cadillac, he found the “brakes apply normal” and “the vehicle stops normal”. The record further reveals that the only noises observed by Clayton during his road-test were “minor squeaks” which was “consistent with operation with worn brake pads”.
In contrast, GM presented proof through the expert testimony of Palumbo and especially, Heintz, that the cause of the excessive brake wear was driving style, or as they stated, “aggressive driving”. GM’s experts’ testimony and Heintz’s report established sufficient basis to believe that Pascarella’s driving style was the underlying cause for the excess brake usage, which Pascarella could not rebut.
The concerns complained of by Pascarella during the Lemon Law period are precisely the type of “trivial defects” contemplated in General Motors Acceptance Corporation v. Jankowitz, that the Lemon Law was not designed to address. 216 N.J.Super. 313, 335. Put simply, none of Pascarella’s concerns led to a loss of functionality of the vehicle. In addition, none of these concerns in any way frustrated the intended use of the vehicle.
Based upon the foregoing, I CONCLUDE that the proofs submitted by Pascarella does not establish a nonconformity satisfying the Lemon Law definition. Clayton testified that Pascarella’s concerns regarding vehicle’s brake noise and vibration did not impact the Cadillac’s safety as the noise concern never caused increased stopping distance when braking. I CONCLUDE that Pascarella did not present proofs that her concerns resulted in an accident; cause her to lose control of the vehicle; caused the vehicle to break down; come in contact with another vehicle or object in the road; create any drivability concerns or ever prevent her from getting to an intended destination. Instead, as Clayton found and opined at the hearing, the Cadillac’s brake operation was “normal.”
I CONCLUDE further that Pascarella did not present an “objective assessment of the concern complained of” necessary in establishing non-conforming use, as required by the Lemon Law and case law, as her expert testified that while he found the brakes “defective” he could not determine why.
I CONCLUDE that Pascarella has not established by a preponderance of the credible evidence that the noise concern complained of is a defect that substantially impairs the safety, use or value of the vehicle in accordance with N.J.S.A. 56:12-33. Instead, I CONCLUDE that GM has demonstrated that the brakes are wearing out prematurely due to the type of use or misuse/abuse they are being subjected to. Concerns caused by abuse/misuse are not covered by the vehicle’s written limited warranty nor by New Jersey’s Lemon Law. N.J.S.A. 56:12-40.
Here, tough defense counsel successfully minimized the importance of brake problems and successfully argued that driving habits were the likely cause of problems.
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