JEROME JONES v. FORD MOTOR COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3208-07T13208-07T1

JEROME JONES,

Petitioner-Appellant,

v.

FORD MOTOR COMPANY,

Respondent-Respondent.

________________________________________________________________

 

Submitted June 15, 2009 - Decided

Before Judges Carchman and Parrillo.

On appeal a Final Decision of the

New Jersey Division of Consumer Affairs

Gaccione, Pomaco & Malanga, attorneys

for appellant (Joseph A. DeFuria, of

counsel and on the brief).

Anne Milgram, Attorney General,

attorney for the Director of the

Division of Consumer Affairs (Susan

Carboni, Deputy Attorney General,

on the brief).

Dobis, Russell & Peterson, attorneys

for respondent (James S. Dobis, on

the brief).

PER CURIAM

Appellant Jerome Jones appeals from a final decision of the Acting Director of the Division of Consumer Affairs (the Director) adopting the recommendation of the Administrative Law Judge Richard McGill (ALJ) dismissing appellant's Lemon Law Dispute Resolution Application. N.J.S.A. 56:12-37. We affirm.

These are the relevant facts adduced at the hearing before the ALJ. On March 8, 2005, appellant leased a 2 005 Ford 500, manufactured by respondent Ford Motor Company (Ford), from Montclair-Bloomfield Motors. On February 23, 2006, less than a year later, with 7,800 miles on the car, appellant brought his car to the Montclair Jaguar Lincoln-Mercury (Montclair) for service, complaining that the vehicle generated a noise when he turned the steering wheel. The problem persisted as several other concerns about the car emerged, and on April 5, 2006, appellant brought his car to Wyman Ford Inc. (Wyman), complaining of these problems. Wyman verified that a leak in the power steering pump allowed the power steering fluid to escape, the absence of such liquid causing the grinding noise complained of by appellant. To remedy the problem, Wyman plugged the hole with Teflon tape and added more power steering fluid. After these repairs, appellant still experienced problems with the vehicle and returned to Wyman for further repairs. On July 24, 2006, Wyman inspected the car again for a different noise and replaced the upper strut bearing, which quieted the noise coming from the front suspension.

A few months after this repair, the original noise from the power steering reappeared. On November 8, 2006, appellant returned to Montclair, where, upon inspection, the dealership verified the noise from the steering wheel and the low power steering fluid. They assumed a leak in the pump and/or hose and added more fluid to the power steering. At this point, appellant mailed a written demand to Ford for relief under the New Jersey Lemon Law (the Lemon Law), N.J.S.A. 56:12-29 to -49.

On December 5, 2006, Wyman conducted an inspection and road test of the vehicle, which did not evidence any malfunctions, noises or defects. Problems persisted, and appellant once again brought the car to Montclair on January 17, 2007. Montclair noted that the power steering fluid was at the minimum and found a "little wetness" by the power steering feed hose. Finally, on July 24, 2007, appellant brought the car to Ozzie's Ford Store because of several complaints - the noise from power steering being one of them. According to appellant, though not corroborated by the invoice from this July 24 visit, the repairman told him that a problem existed with the power steering pump and he should have it repaired. Appellant refused these repairs and proceeded under the Lemon Law.

At trial, the ALJ found for defendant. The judge determined that a defect existed due to a leak in the power steering causing the system to slowly leak power steering fluid and generate a noise when the wheel turned. He concluded that these defects, however, did not constitute a nonconformity that implicates the Lemon Law. The ALJ accepted the expert's testimony that this defect does not pose any substantial impairment of the vehicle's safety. Further, because appellant can avoid these problems by periodically refilling the power steering fluid, this defect does not substantially depreciate the vehicle's value. Finally, the ALJ found that this defect did not impair appellant's use of the car, even though appellant asserted that he stopped driving the car because of it. The ALJ did not find him credible, because contrary to his assertion, the car's mileage evidenced that appellant used the car on average the same amount he did prior to July 24, 2007 (938 miles, averaging approximately 150 miles per month), when appellant refused repairs and allegedly stopped using the vehicle altogether. The ALJ concluded that there was no impairment in use, safety or value and dismissed the claim. The Director issued a final decision adopting the ALJ's decision in full. This appeal followed.

We will not upset the ultimate determination of any agency, unless shown that it was arbitrary, capricious or unreasonable, or that it violated legislative policies expressed or implied in the act governing the agency. Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 10 (2009); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963).

The ALJ found, and we agree, that the power steering defect did not constitute a nonconformity defect that implicates the Lemon Law. The Lemon Law states in pertinent part,

[i]f a consumer reports a nonconformity in a motor vehicle to the manufacturer or its dealer during the first 18,000 miles of operation or during the period of two years following the date of original delivery to a consumer, whichever is earlier, the manufacturer shall make, or arrange with its dealer to make, within a reasonable time, all repairs necessary to correct the nonconformity.

[N.J.S.A. 56:12-31.]

"`Nonconformity' means a defect or condition which substantially impairs the use, value or safety of a motor vehicle." N.J.S.A. 56:12-30.

We have observed that the standard that must be applied is whether

in determining if a defect or condition substantially impairs the use or value of the automobile . . . the defects or conditions have shaken the plaintiff's confidence in the automobile. If the plaintiff's confidence in the vehicle has been shaken this loss of confidence can be the basis for a finding that the vehicle's use or value . . . has been substantially impaired.

But in making this determination . . . the standard is subjective or personal in the sense that the facts must be examined in the view point of the buyer and [his] circumstances but they are also objective in the sense that the criteria is what a reasonable person in the buyer's position would have believed.

[DiVigenze v. Chrysler Corp., 345 N.J. Super. 314, 333 (App. Div. 2001)(commenting on the adequacy of a jury charge under the Lemon Law).]

Here, the ALJ, acting as factfinder, found Ford's expert credible, thus determining that this defect in the power steering did not pose any substantial safety threat. Because the ALJ considered the periodic refilling of the power steering fluid only a minor burden, he determined that the car's value did not significantly decrease from this defect. And finally, the ALJ did not find appellant's testimony credible. Though appellant alleged that the noise scared him enough to substantively impair his use of the vehicle, the ALJ rejected that claim relying on the conspicuously unaccounted for 938 miles driven during the period in which appellant claimed that he did not drive the car.

The ALJ's findings as adopted by the Acting Director were supported by the record, and we perceive of no basis for our intervention.

Affirmed.

(continued)

(continued)

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A-3208-07T1

August 27, 2009