Fuel Still Left for Suit Alleging That BMWs Roll

     (CN) – A BMW driver will have to amend her claims that vehicles in the 7-Series “flagship line” shift into neutral rather than park, making them roll into nearby objects, a federal judge ruled.
     The 2004 BMW 745i that Monica McQueen bought from DeLuxe Auto Sales in Newark, N.J., in 2008 contained an electronically controlled shift-by-wire transmission system manufactured by two German companies, Robert Bosch GmbH and ZF Friedrichshafen AG.
     In a subsequent federal class action against BMW of North America and its Munich-based parent, Bayerische Motorenweke AG, McQueen claimed that the 2002-08 7-Series “flagship line” of cars is defective.
     After receiving complaints that the vehicles fail to shift into park, but remain in neutral, the National Highway Traffic Safety Administration (NHTSA) investigated and found a defect in those equipped with a Comfort Access System feature, which enables the driver to start the vehicle by pressing a button instead of inserting a key into the ignition.
     Although McQueen’s car is not equipped with this feature, she claims that it has rolled away as a result of the defect at least five times.
     Most recently, McQueen’s car allegedly collided with her garage door, causing damage on both ends.
     She claims that, although BMW supposedly knew that all the 7-Series vehicles were defective, the company never disclosed this at any time prior to issuing a recall on the comfort-equipped vehicles.
     The complaint asserts violations of the New Jersey Consumer Fraud Act and the Magnuson-Moss Warranty Act, breach of the implied warranty of merchantability, negligence, negligent misrepresentation, and fraud.
     BMW moved to dismiss for lack of standing and failure to state a claim, and to “refer” the suit to the NHTSA, or alternatively adopt its supposed findings of fact.
     U.S. District Judge Stanley Chesler refused to refer the suit Thursday.
     “As plaintiff argues, the NHTSA did not in fact make a determination about the defectiveness of the vehicles which are not equipped with the [Comfort Access System] CAS feature,” the unpublished ruling states. “BMW NA’s logic is flawed. To accept its argument would be the same as accepting the conclusion that there are no four-leafed clovers in a giant field simply because an individual was not able to find one.”
     The court also tossed aside BMW’s claim that McQueen lacks Article III standing.
     “The notion that the plaintiff here has not suffered an injury until she has paid for repairs is as nonsensical as suggesting that a homeowner whose house has been intentionally burned down has not suffered an injury until she has rebuilt her home,” Chesler wrote.
     The court dismissed McQueen’s fraud, warranty, and negligence claims, however.
     “The complaint does not include any information as to when, before the time of the purchase of her vehicle, BMW learned of the defect, how it gained that knowledge, who at the company possessed the knowledge, and when or how the ultimate decision was made not to disclose this supposed knowledge of the defect from customers,” Chesler wrote. “This information is required to meet the Rule 9(b) standard.”
     McQueen failed to precisely identify the defect, and her claim that the NHTSA reviewed 32 customer complaints regarding non-comfort-equipped vehicles – 0.026 percent of a pool of about 122,000 cars – does not show that BMW knew about a defect, according to the ruling.
     McQueen may amend her complaint, however, to include any additional factual allegations.
     BMW, one of the world’s best-selling luxury automakers, reported about $100 billion in revenue in 2012.

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