Drivers Defend Scope Of Nissan Faulty-Transmission Suit

Law360 (March 8, 2018, 5:56 PM EST) — Alabama and Florida residents and business owners suing Nissan North America Inc. over transmission problems in thousands of its vehicles defended the scope of their proposed class action Wednesday, telling an Alabama federal judge that the car maker shouldn’t be allowed to duck their breach of warranty claims.

The plaintiffs filed a trio of briefs opposing Nissan’s efforts to dismiss the suit entirely for purportedly failing to allege any actual warranty violations, to slash claims from two Florida-based plaintiffs — car owner Marco Lashin and a driving school in Winter Haven, Florida, called Lakeland Atlantic Driving School LLC — as well as the car maker’s bid to strike the proposed class definitions for being too broad.

“Nissan’s motion to dismiss is largely premised under the assumption that a consumer has no recourse against the manufacturer of a dangerous and defective automobile,” the plaintiffs argued. “While not stated explicitly, Nissan’s motion to dismiss seeks to bar consumers from receiving any remediation for Nissan’s defective product. These consumers relied on Nissan’s advertisements and warranty in purchasing Nissan’s vehicles, and Nissan failed to uphold its promises.”

The named Alabama plaintiffs are U Can Rent LLC and Pamela Pritchett.

The suit alleges Nissan designed, manufactured, marketed and sold vehicles with a defective continuously variable transmission that had a number of problems despite being touted as more “dependable” than traditional transmissions, making them last significantly longer.

For example, problems with the CVT include jumping, starting, stopping, binding and lagging unexpectedly, according to the plaintiffs. There’s also been instances of sudden and unexpected shaking, violent jerking, lack of drivability and improper acceleration or deceleration. Additionally, the CVT failed for more than one plaintiff, causing their vehicles to be inoperable, they’ve alleged.

They also defended their claims under the Magnuson-Moss Warranty Act, which provides a federal cause of action to consumers for breaches of product warranties and limits the duration of implied warranties to the period of the written warranty, and says Nissan’s bid to eliminate from the class action the Florida plaintiffs, who were added on as plaintiffs in the amended complaint, makes no sense.

“Nissan asks the court to reach an absurd result,” the plaintiffs said in their opposition brief. “The defendant does not challenge personal jurisdiction over it for the Alabamians’ (Pritchett and U Can Rent) national class claim under the MMWA, but it contends that the Floridians (Lashin and Lakeland) cannot serve as representative plaintiffs for that national claim. Floridians are included in the national class proposed.”

They argued that Nissan essentially wants the court to conclude that the Alabamians can sue on behalf of those Floridians who are absent class members, but actual Floridians like Lashin and Lakeland Atlantic cannot.

Nissan moved last month to chuck the suit or trim the claims, saying its warranties only cover flaws in materials and workmanship, and that the plaintiffs’ allegations sound more like a design defect. But even if such a defect existed, the company said, it didn’t stop the named plaintiffs from getting the full warrantied mileage out of their Nissan automobiles.

“They report various issues and blame the CVT for the reported performance symptoms,” Nissan said of the plaintiffs. “They do not, however, identify any particular defect that caused their alleged issues. Nor do they show that any qualified person has diagnosed any particular problem with the CVT. Whatever problems that plaintiffs might have experienced, these issues apparently did not prevent the vehicles from serving their function of providing transportation.”

The carmaker also sought to have two proposed nationwide classes axed to the extent that their members’ claims didn’t have anything to do with Alabama. Under the U.S. Supreme Court’s 2017 ruling in Bristol-Myers Squibb v. Superior Court of California, it said, the court lacks personal jurisdiction over Nissan in the case of would-be class members who didn’t buy their cars in Alabama or aren’t citizens of the state.

But the plaintiffs countered Wednesday that Nissan’s motion to strike or dismiss the class definitions fails because it is wrongly premised on Bristol-Myers Squibb, which they say does not concern personal jurisdiction in federal district courts, class actions under Rule 23 of the Federal Rules of Civil Procedure, nor the “striking” or “dismissing” of class allegations.

“Nissan is going out on a limb here,” Taylor C. Bartlett of Heninger Garrison Davis LLC, one of the attorneys for the plaintiffs, told Law360 on Thursday. “Nissan is attempting to extend Bristol-Myers Squibb in a way the Supreme Court did not intend for it to be extended.” 

Nissan representatives could not be immediately reached for comment Thursday.

The proposed classes are represented by Taylor C. Bartlett, W. Lewis Garrison Jr. and Christopher B. Hood of Heninger Garrison Davis LLC and Troy King of the Law Offices of Troy King.

Nissan is represented by Charles A. Stewart III, Jonathan C. Hill, Sarah S. Osborne and Michael R. Pennington of Bradley Arant Boult Cummings LLP and E. Paul Cauley Jr. and S. Vance Whittie of Drinker Biddle & Reath LLP.

The case is U Can Rent LLC et al. v. Nissan North America Inc., case number 2:17-cv-00736, in U.S. District Court for the Middle District of Alabama.

–Additional reporting by Jack Newsham. Editing by Orlando Lorenzo.