Auto Products Liability
True to my technophile self, I’ve embraced all the latest advances in automobile technology. I was driving a few friends back from lunch a few days ago, and they were aghast at how I didn’t even turn my head as my car backed into a tight space. So, the news of the fatal crash involving a Tesla-S in self-driving mode (aka “Autopilot”) broke my heart. I pictured the proud Tesla owner, Joshua Brown (a tech consulting firm owner) who had grown accustomed to trusting his car to drive him in stop and go traffic. That fateful day was sunny, exceptionally bright, when a tractor-trailer turned left in front of the Tesla driver.
The Tesla news release explained:
Neither Autopilot nor the driver noticed the white side of the tractor trailer against a brightly lit sky, so the brake was not applied. The high ride height of the trailer combined with its positioning across the road and the extremely rare circumstances of the impact caused the Model S to pass under the trailer, with the bottom of the trailer impacting the windshield of the Model S. Had the Model S impacted the front or rear of the trailer, even at high speed, its advanced crash safety system would likely have prevented serious injury as it has in numerous other similar incidents.
While my enthusiasm for autonomous cars remains in high gear, this tragedy highlights the fact that the engineers need to reexamine their algorithms to uncover any other possible scenarios where sensors may not react quickly enough to keep all of the passengers safe.
Autopilot is getting better all the time, but it is not perfect and still requires the driver to remain alert. Nonetheless, when used in conjunction with driver oversight, the data is unequivocal that Autopilot reduces driver workload and results in a statistically significant improvement in safety when compared to purely manual driving.
This begs the question: Why have an Autopilot function if an alert driver is constantly required to oversee the Autopilot? Human nature will result in drivers allowing themselves to get distracted, once putting their cars into self-driving mode. What’s the purpose of an autonomous car, if the human behind the steering wheel cannot let her mind wander for even a moment?
The deadly Ride The Ducks crash that claimed six lives on Sept. 24th on the Aurora Bridge. Today the Ducks attempts to turn the corner. It is is the first day since that crash that some of the Ducks amphibious vehicles will be out back on the roads in limited numbers in Seattle.
Frustration and surprise were among some of the reactions from SKW clients Yuta Masumoto and Mazda Hutapea, international students at North Seattle Community College, who were on the bus and who sustained serious injuries as a result of the crash. These two young students, excited to study abroad, are now faced with long recovery times to deal with broken bones, torn ligaments, and bodies that resemble those who have lived four times longer than each of them.
Their lawsuits were filed today and to hold the Ducks company accountable for vehicles that were apparently fraught with mechanical issues.
*Doug Phillips is co-counsel.
A few days ago, news reported the plight of SKW client, Phuong Dinh, 18 year old international student, who was seriously injured in the Oct. 2015 Ride the Ducks crash. With a long way to go in her recovery, she also had to worry about losing her health coverage. Please read about the wonderful turn of events in today’s Seattle Times article,”Ride the Ducks crush victim to get help from state, college.
A couple weeks have passed since the last significant crash Aurora Bridge that claimed six lives. Based on a KING5 news story tonight, a safety team of sorts is assembling. Team members are comprised of six individuals from SDOT and two from WSDOT.
The SDOT members include the city’s traffic engineer, two collision analysts, a corridor safety expert and the division manager for transportation. A project manager along with a state traffic engineer and regional administrator will head the team. Additionally, police and other city and state agencies are expected to participate.
Some of the members wear different hats within their agencies and others will focus entirely on their role on this team per KING5 investigative reporter, Glenn Farley.
This time, let’s shine a light on this entire process and ensure that the City and State follow through in making the bridge safer. Rather than focusing on misleading statistics (e.g., the relatively “low” number of crashes), let’s open our eyes to widespread and well-founded concerns of those who must drive on this bridge regularly with the fear of another fatal collision.
Maybe owners of Chrysler, Dodge, Jeep and Ram are just too busy or don’t care if they might lose control over their steering or have a defective rear axle. But their problem is exponentially greater because tens of thousands of owners have not responded to recall notices to fix their vehicles for faulty steering and/or suspension parts. It hasn’t helped that Fiat Chrysler dragged their feet in issuing recalls of over 11 million cars and trucks. Thus, this past July, Fiat Chrysler agreed to pay a record $105 million penalty and to take steps following a government investigation of the company’s handling of 23 recalls involving the >11 million vehicles.
The National Highway Traffic Safety Administration demanded that consumers be able to sell their vehicles back to the company if repairs haven’t been completed. Fiat Chrysler has estimated that more than 60 percent of the estimated 500,000 vehicles have already been repaired, leaving them ineligible for a buy back.
Owners of the 1993-1998 Jeep Grand Cherokee and 2002-2007 Jeep Liberty who hadn’t taken their SUVs in for recall repairs for a faulty gas tank by July 24 are eligible for a $1,000 credit that can be applied toward the purchase of a new Fiat Chrysler car or truck at a dealership. Owners who want to keep their vehicles get a $100 prepaid credit card after their repairs are complete.
Some of the $105 million penalty levied against Fiat Chrysler will go to offering buybacks, trade-in incentives or even cash to some drivers affected by the recalls. The company agreed to make all of these deals available in the next few weeks.
If you drive one of several Ram pickup models, or a 2009 Dodge Durango, a 2009-2011 Dodge Dakota or a 2009 Chrysler Aspen, your car qualifies for a buyback if it hasn’t been fixed yet. Eligible Ram pickups include the 1500 from model years 2008-2009 and the 2500, 3500, 4500 and 5500 from model years 2008-2012. Chrysler said that there are less than 200,000 of these vehicles on the roads.
Why Fiat Chrysler got in trouble: Those models were recalled two years ago for steering issues or loose rear axles. Either problem could cause the driver to lose control of the vehicle. To make matters worse, Chrysler didn’t make enough replacement parts or failed to provide “effective” parts after the initial recall, said Gordon Trowbridge, spokesman for the National Highway Traffic Safety Administration.
Other Ram pickups have also been recalled for steering issues, but Trowbridge said that many more of those vehicles were fixed, so they’re not included in this program.
Solution: Whether you bought your vehicle new or used, bring it into a dealer. They’re required to buy the car back from you at “fair market value,” and to throw in a 10% premium. You can walk away with the all that money in cash, or use the money toward purchasing a new vehicle.
“Fair market value” is the original sticker price of the vehicle minus depreciation. The dealer will negotiate that value with you when you take it in. Check Kelly Blue Book or another used-car value benchmark to see what yours is potentially worth.
Who is eligible for a trade-in bonus
Older Jeep Grand Cherokee models are eligible for a trade in at above-market value. If you have a 1993-1998 Jeep Grand Cherokee and you haven’t fixed the fuel tank problem it was recalled for, Fiat Chrysler is required to let you trade in your vehicle and give you a $1,000 credit. These Jeeps were recalled back in 2013 for fuel tanks that can leak after a rear-end collision. That issue has been linked to more than 75 deaths.
The fix: Take your SUV to a dealer and trade your Grand Cherokee in for a new car. The trade-in price will again be for “fair market value,” and the $1,000 can only be used toward purchasing another Fiat Chrysler vehicle or dealer parts and services. If you’d rather keep your Grand Cherokee, Fiat Chrysler must give you a $100 gift card (that you can use anywhere) when you take your SUV in to be fixed.
Who is eligible for a $100 gift card: Some Jeep owners can take their car in for a fix and get a $100 gift card. You can also get a $100 gift card for bringing in a 1999-2004 Jeep Grand Cherokee or a 2002-2007 Jeep Liberty for a fix. Those vehicles also had concerns about faulty fuel tanks and were involved in recalls or “safety campaigns” by Fiat Chrysler. Solution: Take your SUV to a dealer, have your vehicle fixed or inspected, and get a $100 gift card that you can spend anywhere.
2015 might just easily earn the dubious distinction as the Year of the Historic Recalls. We started off the year with news about the GM ignition recalls and the early months led to a great deal of hand-wringing over the massive Honda/Takata airbag recall. Now, the public is hit with news about the massive Fiat Chrysler recall. Given our firm’s long history of auto products liability cases, we continue to get requests to look at cases involving serious injuries resulting stemming from these recall issues.
Earlier this week, federal regulators slapped a $105 million penalty against Fiat Chrysler Automobiles for its failure to complete 23 safety recalls that included over 11 million vehicles. If you’re wondering whether this is the highest civil penalty imposed yet by NHTSA on an automaker for recall violations, then you are right.
This recall also demonstrates an escalation of the agency’s efforts to investigate and punish automakers that do not adequately recall and fix defective models.
“This civil penalty puts manufacturers on notice that the department will act when they do not take their obligations to repair safety defects seriously,” said the secretary of transportation, Anthony Foxx.
In a statement, the automaker acknowledged the safety violations and agreed to the record penalties.
“We also accept the resulting consequences with renewed resolve to improve our handling of recalls and re-establish the trust our customers place in us,” the company said.
The agency said the civil penalty was broken down into a cash penalty of $70 million, and an agreement that Fiat Chrysler would spend at least $20 million on meeting performance requirements detailed in the consent order. An additional penalty of $15 million will be assessed on the company if an independent monitor, who has yet to be announced, discovers further violations of safety laws or the consent order.
Under the order, Fiat Chrysler is required to buy back as many as 500,000 vehicles with defective suspensions that can cause drivers to lose control. Also, owners of more than one million Jeeps with rear-mounted gas tanks that are prone to fires will be given an opportunity to trade in their vehicles at rates above market value.
Mark R. Rosekind, who took over as the administrator of the highway safety agency last December, said the heavy fine was a direct result of Fiat Chrysler’s prolonged failures to fix recalled models.
“Fiat Chrysler’s pattern of poor performance put millions of its customers, and the driving public, at risk,” he said.
The agency is authorized to impose a maximum fine of $35 million for an individual recall that is not completed in a timely manner.
The government’s action is the latest in a series of moves by Mr. Rosekind to put more pressure on automakers to fix defective vehicles.
“We need a proactive safety culture in this country,” he told reporters at a recent briefing in Detroit.
In Fiat Chrysler’s case, this month the government took the unusual step of holding a public hearing to focus on 23 separate recalls that date back to 2009. At the hearing, federal officials said the company had repeatedly failed to notify consumers of recalls and to complete repairs in a timely fashion.
The company’s top safety executive, Scott Kunselman, admitted the automaker had made “mistakes and missteps” in conducting recalls. “The agency has raised some legitimate questions,” he said at the hearing on July 2.
The automaker has started several new recalls since the hearing, including one on July 24, 2015 (this past Friday) that covered 1.4 million vehicles vulnerable to computer hackers.“The $105 million fine shows the need for an uncapped penalty,” said Clarence Ditlow, an official of the Center for Auto Safety who first petitioned the government to investigate the rear-mounted fuel tanks in Jeeps.
Fiat Chrysler is currently recalling 1.59 million Jeeps equipped with the rear-mounted gas tanks, which can catch on fire in high-speed collisions.
The company is installing trailer hitches on the affected Jeeps to soften the impact of rear-end collisions. But the rate of repairs in that recall has been slow, government investigators say.
Under the consent order, Jeep owners will have the option to trade in a vehicle for above market value or receive an unspecified payment from Fiat Chrysler to install a trailer hitch.
The latest number is ~34 million vehicles that are now included in the Takata airbag recall. This means 1 out of every 5 cars likely has a dangerous airbag or some other defective part (see below). Our Seattle auto product liability lawyers have handled many product liability cases–including with defective airbags. With this latest recall, the landscape of auto product recalls shifts dramatically. While the GM faulty ignition switch recall made history earlier this year at roughly 2.6 million recalls issued, the Takata recall reaches across company lines and includes 11 different auto makers. While the number of stories relating to the defective airbags is not large (under 10, compared to the 100+ deaths for the GM recall), any one who rides in a car or truck should not rest easy.
Apparently, many of you were alarmed enough today. There were droves (no pun intended) of concerned car owners who tried to visit NHTSA website for information, but the site has crashed a number of times today. Remember that the database is still not entirely updated on the NHTSA site, as it will take a few days. When you are ready to check it out, remember to jot down your VIN number.
If you or a family member was injured or killed due to a defective airbag, please contact us at Counsel@Stritmatter.com or 206.448.1777. Seattle law firm, Stritmatter Kessler Whelan, is investigating cases involving defective Takata airbags.
See below for a large chunk of the car makers and models that are included in the recall:
Toyota: 778,177 total number of potentially affected vehicles
2002 – 2004 Lexus SC
2003 – 2004 Toyota Corolla
2003 – 2004 Toyota Corolla Matrix
2002 – 2004 Toyota Sequoia
2003 – 2004 Toyota Tundra
2003 – 2004 Pontiac Vibe
Honda: 2,803,214 total number of potentially affected vehicles
2001 – 2007 Honda Accord (4 cyl)
2001 – 2002 Honda Accord (6 cyl)
2001 – 2005 Honda Civic
2002 – 2006 Honda CR-V
2003 – 2011 Honda Element
2002 – 2004 Honda Odyssey
2003 – 2007 Honda Pilot
2006 – Honda Ridgeline
2003 – 2006 Acura MDX
2002 – 2003 Acura TL/CL
Nissan: 437,712 total number of potentially affected vehicles
2001 – 2003 Nissan Maxima
2001 – 2003 Nissan Pathfinder
2002 – 2003 Nissan Sentra
2001 – 2003 Infiniti I30/I35
2002 – 2003 Infiniti QX4
2003 – Infiniti FX
Mazda: 18,050 total number of potentially affected vehicles
2003 – 2004 Mazda6
2004 – Mazda RX-8
BMW: 573,935 total number of potentially affected vehicles
2000 – 2005 3 Series Sedan
2000 – 2006 3 Series Coupe
2000 – 2005 3 Series Sports Wagon
2000 – 2006 3 Series Convertible
2001 – 2006 M3 Coupe
2001 – 2006 M3 Convertible
General Motors: 133,221 total number potentially affected vehicles
2002 – 2003 Buick LeSabre
2002 – 2003 Buick Rendezvous
2002 – 2003 Cadillac DeVille
2002 – 2003 Chevrolet Trailblazer
2002 – 2003 Chevrolet Impala
2002 – 2003 Chevrolet Monte Carlo
2002 – 2003 Chevrolet Venture
2002 – 2003 GMC Envoy
2002 – 2003 GMC Envoy XL
2002 – 2003 Oldsmobile Aurora
2002 – 2003 Oldsmobile Bravada
2002 – 2003 Oldsmobile Silhouette
2002 – 2003 Pontiac Bonneville
2002 – 2003 Pontiac Montana
NOTE: Video clip of interview is from PBS.org.
Yesterday, a court order to unseal the entire court file in the massive whistleblower case against Trinity Guardrails (maker of now infamous ET Plus guardrails) will likely save many lives. This file contains literally hundreds of sealed pleadings and exhibits relating to a dangerous highway guardrail that’s been linked to dozens of deaths and injuries. The court also held that all of the testimony and exhibits from a recent trial of the case must also remain open to the public, effective immediately.
Below is an excerpt from the Public Justice website*:
The [court order to unseal all of the files for public access] is so important in this case. A major highway guardrail manufacturer, Trinity, will not be able to hide the fact that it kept its changed guardrail design from the federal government and that that guardrail design is unsafe. The victory also means that the public has access to facts that will be critical for making the case that the federal government should withdraw its approval of these guardrails. And it’s ammunition for states seeking to phase out and remove these lethal guardrails from our highways.
Trinity was sued for defrauding the federal government by changing the design of its guardrail end terminals, not conducting appropriate crash tests on the new design, and not telling the federal government about the changes—meaning that the guardrails remained on the Federal Highway Administration’s list of approved guardrails. A jury found that Trinity defrauded the government to the tune of $175 million.
Because of the design change, when the terminal is hit by a car, instead of absorbing the energy of the crash and slowing the vehicle, the guardrail jams and turns into a potentially lethal spear. Drivers and their passengers have been decapitated, their limbs have been severed, and they have been stabbed by these guardrails. A study by Public Justice client, The Safety Institute found that the redesigned Trinity guardrail was 2.86 to 3.95 times more likely to be involved in a lethal accident and 1.36 to 1.95 times more likely to be involved in an accident with serious injury than Trinity’s older design.
In the case against Trinity, huge swaths of court records—including crash test documents—were filed under seal. On behalf of The Safety Institute and the Center for Auto Safety, consumer protection attorneys sought to intervene to unseal the records. Although our motion to intervene was denied, our efforts to unseal the records helped to convince the court to do the right thing.
*NOTE: Stritmatter Kessler Whelan partner Brad J. Moore currently serves as President Elect of Public Justice, the country’s largest public interest law firm.
With gas still relatively cheap for now more consumers are considering buying a new car as the auto industry experiences double digit growth not seen since 2002.
In fact, more are leaning towards compact SUVs (or “CUVs”) and larger cars. Based on articles I’ve read, including the one on an insurance industry site, staying in the category of larger cars may also be a safer choice. According to the Insurance Institute for Highway Safety, Highway Loss Data Institute, the top 10 vehicles with the most fatalities include mini cars such as the Chevy Aveo, the Nissan Versa, the Ford Focus, and the Honda Civic. Other larger cars that made the dubious distinction as one of the cars with the highest rates of deadly accidents include the Camaro coupe and the Silverado (both Chevrolets),
Compare the “Most Deadly Cars” list with the below and best of luck on your next car purchase. As SKW wrongful death/injury attorneys are typically only contacted when after a fatal or catastrophic car accident, we see first hand the difference a well designed car can make when someone is involved in a serious crash.
|Overall driver deaths per million/ea year||Multiple-vehicle
|Audi A4 4WD||luxury car||midsize||0||0||0||0|
|Honda Odyssey||minivan||very large||0||0||0||0|
|Kia Sorento 2WD||SUV||midsize||0||0||0||0|
|Lexus RX 350 4WD||luxury SUV||midsize||0||0||0||0|
|Mercedes-Benz GL-Class 4WD||luxury SUV||large||0||0||0||0|
|Subaru Legacy 4WD||4-door car||midsize||0||0||0||0|
|Toyota Highlander hybrid 4WD||SUV||midsize||0||0||0||0|
|Toyota Sequoia 4WD||SUV||large||0||0||0||0|
|Volvo XC90 4WD||luxury SUV||midsize||0||0||0||0|
|Honda Pilot 4WD||SUV||midsize||2||0||2||0|
|Mercedes-Benz M-Class 4WD||luxury SUV||midsize||3||3||0||0|
|Ford Crown Victoria||4-door car||very large||4||4||0||0|
|GMC Yukon 4WD||SUV||large||4||0||4||0|
|Acura TL 2WD||luxury car||midsize||5||5||0||0|
|Chevrolet Equinox 2WD||SUV||midsize||5||3||2||0|
|Chevrolet Equinox 4WD||SUV||midsize||5||5||0||0|
|Ford Expedition 4WD||SUV||large||5||5||0||0|
|Ford Flex 2WD||SUV||midsize||5||0||5||0|
|Mazda CX-9 4WD||SUV||midsize||5||0||5||5|
|2WD: 2-wheel drive; 4WD: 4-wheel drive|