Judge Rejects Ford’s Bid to Toss Explorer Exhaust Class Action

DETROIT (CN) – Three Ford Explorer owners who sued over an alleged defect that allows exhaust fumes to seep into the SUV’s cabin can proceed with their claims after a federal judge Monday rejected the motor company’s motion to dismiss.

In the underlying class action complaint in the Eastern District of Michigan court, the owners of Ford Explorer models from 2016 and 2017 sued Ford Motor Company in August 2017 alleging that dangerous carbon monoxide had leaked into passenger cabins causing headaches, nausea and dizziness. The odorlessness gas is potentially fatal.

Lead plaintiff and Atlanta, Georgia retiree Suresh Persad, 67, said that he had bought a 2016 Ford Explorer and soon realized exhaust fumes were accumulating in the compartment when he was driving. He claimed that after he took the vehicle to the dealer for a road test, it said there was no problem and refused to repair the defect.

Ford countered that its Explorers are safe to drive but offered customers free service to address the issue. The company asked U.S. District Judge Terrence Berg to throw out the lawsuit on procedural grounds arguing that the plaintiffs had failed to sufficiently state claims of fraudulent concealment, negligent misrepresentation, breach of express warranty and other counts.

Berg denied the motion in its entirety rejecting the notion that the owners were on notice because of publicly known issues with earlier Explorer models. The vehicle owners had made clear that they had no way of knowing that the same defect existed in their later models, the judge said.

“Indeed, a plausible inference could be drawn in the opposite direction – that because older Ford Explorers suffered from well-publicized exhaust fume defects, a reasonably prudent consumer might expect that Ford had rectified this issue in the newer models,” Berg wrote in the 23-page opinion.

Berg rejected Ford’s contention that the lawsuit only alleged a design defect, not covered under the Dearborn, Michigan company’s warranties.  The judge said the court needs to see more evidence to establish whether the fault is caused by a flaw in materials used in the exhaust and air conditioning and heating systems or manufacturing.

“At this stage of the litigation, plaintiffs’ allegations are sufficient to sustain that the exhaust fume defect is covered by the applicable warranties,” the judge wrote, adding that the owners’ claims fall within the warranty period of 3 years or 36,000 miles.

Berg gave Ford two weeks to file an answer in court.

Since 2016, the National Highway Traffic Safety Administration has been investigating the claims that Explorers models from 2011 to 2017 were exposing drivers to dangerous levels of carbon monoxide.

According to The Center for Auto Safety, Ford has failed to fix the defect, and the agency has yet to complete its investigation. Earlier this month, the advocacy group sent a letter to Ford CEO Jim Hackett demanding that it recall 1.3 million vehicles. Though Ford has offered customers free service, drivers have still complained that they have felt nauseous, dizzy and suffered from headaches while driving, the group says.

Ford and Persad’s attorney did not immediately respond to a request for comment.

Persad said in a phone interview Tuesday that he still smells gas when he drives his vehicle. He said he was frustrated by the defect and reluctant to go to his dealer again because he says the company won’t acknowledge there’s a problem.

“You drive 60 or 70 miles on the interstate and all of sudden you get a smell. You’ve got to take your window down,” Persad said. “Ford should do something. They should take it back or compensate it for a vehicle of the same worth that doesn’t have that carbon monoxide smell.”

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