August 22nd, 2005
By THOMAS B. SCHEFFEY
The Connecticut Law Tribune Staff Writer
The large trunk and ample “crush space” in Ford Crown Victoria sedans give occupants a good chance of surviving a rear-end collision. But too often the gas tank ruptures and explodes, burning survivors to death.
Warnings from the Center for Auto Safety and the National Highway Transportation Safety Administration prompted Ford to offer a fuel tank protection upgrade for police cars, which Ford lawyers say is simply a program to “make a safe car safer.”
But contractor Christopher Annelli, in a resilient class action complaint, contends Ford is violating Connecticut’s “Secret Warranty Act.” He claims the carmaker should offer the upgrade free to ordinary consumer motorists as well.
Recently denying Ford’s motion to strike the one-count complaint, Judge Trial Referee D. Michael Hurley agreed.
According to Chester attorney James E. Miller, of the class action firm of Shepherd, Finkelman, Miller & Shah, Connecticut is one of four states with a secret warranty act. The others are California, Wisconsin and Virginia. Miller’s firm represents Annelli and is also pursuing a class action in Wisconsin.
The Connecticut law requires auto manufacturers to notify consumers by mail within 90 days of establishing an adjustment program that extends warranties or provides for repairs or reimbursements. It is limited to conditions that substantially affect safety or reliability.
William R. Nifong, of O’Melveny & Myers in Washington, D.C., represents Ford, along with local counsel Michelle Schaffer of Boston’s Campbell Campbell Edwards & Conroy. Nifong could not be reached by press time.
Ford’s motion to strike argued that Annelli lacked standing to sue because he has not incurred the expense to upgrade his vehicle, and did not allege any actual damages. Annelli quoted the language of the act, which applies to “any person who suffers any ascertainable loss of money or property. ...” Hurley found that “loss” is a far broader term than “damages.” In this case, “loss can be a potential loss, e.g., the cost of a potential purchase of the repair kit,” Hurley determined.
Ford also attempted to strike the complaint on grounds that the Federal Motor Vehicle Safety Act, which provides for vehicle recalls, preempts Connecticut’s secret warranty act. In response, Annelli noted that he’d never asked for a recall, only compliance with the state law. The judge agreed, and found that the federal act was designed to co-exist with some state motor vehicle laws, and the secret warranty act was not federally preempted.
Annelli’s lawsuit was filed last November on behalf of himself and consumers who own or lease a Ford Crown Victoria, Mercury Grand Marquis or Lincoln Town Car model built between 1992 and 2003. Plaintiff’s lawyer Miller said there are approximately 3 million of these “Panther platform” vehicles in the U.S., with an estimated 30,000 of them in Connecticut.
Ford dominates in police cruiser sales, with an 85 percent market share. The company was under pressure to recall some 400,000 Crown Victoria Police Interceptors in 2002, after three Arizona police officers died in separate fiery rear-end crashes and another was severely burned in a fourth. The gas tank design of the civilian and police models is the same, and Ford has upgraded the fuel tank systems in over 350,000 police cars, it reports.
The rationale for only offering the upgrade to police is apparently based on statistical factors. Police vehicles are on the road 10 times as long each day, drive four times as far each year, and often are stopped on medians or at construction sites where some rear-end collisions are inevitable.
Ford acknowledges at least 18 police deaths in which the cruisers burst into flames, and The Detroit Free Press, in an independent 2003 investigation, found there have been 69 such police and civilian deaths since 1979. Ford is offering an industry first in its 2005 Crown Victoria Police Interceptors—an optional crash-triggered fire suppression system.
In an interview, Miller said the secret warranty laws were passed in reaction to discoveries by Clarence M. Ditlow, the veteran executive director of the Center for Auto Safety, based in Washington, D.C. Ditlow found that some automakers saved on the cost of recalls by only providing repairs of defective parts to those who complained. Miller said Ditlow is scheduled to be a witness for the plaintiffs in the Annelli case. “It’s kind of an honor to have such an expert testify,” he said.
***Reprinted with permission of The Connecticut Law Tribune.