Baranco v. Ford Motor Co.

294 F.Supp.3d 950

David BARANCO, et al., Plaintiffs,

v.FORD MOTOR COMPANY, et al., Defendants.

Case No. 17–cv–03580–EMC

United States District Court, N.D. California.

Signed March 12, 2018

Ben Barnow, Pro Hac Vice, Erich Paul Schork, Pro Hac Vice, Barnow and Associates, P.C., Chicago, IL, Courtney L. Davenport, Pro Hac Vice, The Davenport Law Firm LLC, Germantown, MD, David Christopher Wright, McCune Wright Arevalo, LLP, Ontario, CA, Leslie E. Hurst, Timothy G. Blood, Blood Hurst & O'Reardon LLP, San Diego, CA, Matthew David Schelkopf, Pro Hac Vice, McCuneWright LLP, Berwyn, PA, Richard Lyle Coffman, Pro Hac Vice, The Coffman Law Firm, Beaumont, TX, for Plaintiffs.

Tamara Alicia Bush, Dykema Gossett LLP, Los Angeles, CA, David Matthew George, John Mark Thomas, Dykema Gossett PLLC, Ann Arbor, MI, Sherry Ann Rozell, Pro Hac Vice, McAfee and Taft, Tulsa, OK, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS

Docket No. 36

EDWARD M. CHEN, United States District Judge

Plaintiffs allege that Ford manufactured vehicles with defective door latches which permit the door sensors to become contaminated over time, and thus to falsely signal that a door is not closed when in fact it is, posing a variety of safety risks. Plaintiffs bring causes of action for breach of express and implied warranty and under consumer fraud laws for failure to disclose a material defect. Defendant moves to dismiss all claims. As explained below, the Court GRANTS IN PART and DENIES IN PART Defendant's motion.

I. FACTUAL BACKGROUND

Plaintiffs allege that certain Ford and Lincoln vehicles contain defects in the door latch assembly that cause certain sensors to become contaminated over time and thus to falsely signal that a door is open when it is in fact closed. See First Amended Complaint ("FAC"), Docket No. 18, ¶¶ 1–14. The affected vehicles are 2011–2016 Ford Edges, 2012–2014 Ford Flexes, 20131–2014 Ford Explorers, 2011–2013 Lincoln MKXs, and 2013 Lincoln MKTs (the "Subject Vehicles"). FAC ¶ 1.

The defect is inherent to the vehicles in question. In particular, the door latch assembly uses an integral electro-mechanical switch (i.e., a sensor) that detects whether the door is open or closed based on the voltage signal received from the switch. FAC ¶ 35. The vehicles contain a Body Control Module ("BCM") that monitors the voltage from the door latch switch to determine whether the door is open or closed. Id. ¶ 36. When the switch indicates that the door is closed, the BCM sends a "wetting current" through the electrical connector from the door latch switch to the BCM that is supposed to keep the sensor clean. Id. A "wetting current" is "the minimum electric current needed to flow through an electrical contact to break through the surface film resistance on the contact" and to prevent a film of oxidation that may occur from humidity and exposure to moisture. Id. The defect arises from the allegation that the "wetting current" used by the Subject Vehicles is too low to prevent such surface film from accumulating, and thus too low to keep the sensor clean. Id. ¶ 48. In particular, beginning in 2011, the BCM was modified to "reduc[e] the wetting current sent out to clean the switch contacts by more than 75%," which Ford admits "is not sufficient to keep the switch contacts clean and contamination build up [then] causes them to fail." Id. ¶ 49.

As the contamination progresses, it interferes with the accuracy of the voltage readings, falsely indicating to the BCM that a door is open when it is in fact closed. This "triggers an audible warning, activates a visual warning on the instrument panel, and sends out a visual intermittent 'shift to park' message" because the faulty sensor causes the vehicle computer system to mistakenly believe the vehicle has stopped. Id. ¶ 48. In addition, "all interior lights are illuminated and the doors are unlocked, and they cannot then be manually relocked." Id. This "can continue for several hours, even after the vehicle is parked and turned off, draining the battery and potentially stranding vehicle occupants." Id. Furthermore, the defect causes the vehicle's autolock feature to fail. Id. ¶ 37. The autolock feature "will lock all the doors when: all the doors are closed, the ignition is on, you shift into any gear putting your vehicle in motion, and your vehicle reaches a speed greater than 12mph" as well as when "you open then close any door while the ignition is on and the vehicle speed is 9mph (15 km/h) or lower, and your vehicle then reaches a speed greater than 12 mph." Id.

Plaintiffs allege that Ford knew about the defect. In 2014, Ford issued a Technical Service Bulletin ("TSB") to dealerships describing the defect in detail and its cause. Ford recommended dealers use a special tool to perform a fix that would "clean" the sensors, a procedure known as "burning the wires." Id. ¶ 42. Plaintiffs describe this "fix" as a "work-around that did not repair the underlying defect but temporarily stopped it from manifesting for a short period of time." Id. ¶ 43. Allegedly, this allowed Ford to "give the false appearance of repairing the defect, and doing so at a lower repair cost and often during the warranty period." Id. Because it was a temporary fix, however, many customers reported recurrence of the defect, typically after the warranty period, at which point Ford would recommend that drivers "replace the entire door watch assembly at a significant cost to vehicle owners and lessees." Id. Plaintiffs suggest that Ford intentionally used only a less expensive temporary fix during the warranty period in order to shift the cost of repairing the underlying defect onto consumers after expiration of the warranty. Id. This faulty repair process—which temporarily covered up the symptoms but failed to repair the defect—is the basis for Plaintiffs' claims for breach of express warranty. (All the vehicles are subject to a three year or 36,000 mile "Bumper to Bumper" warranty. Id. ¶ 41.)

The defect has affected a significant number of vehicles. Plaintiffs allege that "[o]ver 2,670 people have reported false door ajar problems to NHTSA and Ford and more than 33,000 warranty claims [for the problem] ha[ve] been submitted." Id. ¶ 50.

Plaintiffs claim the door latch defect gives rise to various safety risks. Various studies have shown that having a door which is locked and remains closed during an accident improves a vehicle's crashworthiness and reduces the likelihood of an occupant being ejected in a crash. See FAC ¶¶ 60–63. Automatic door locks "improve the likelihood that doors will stay closed in the event of an accident, retaining the structural integrity of the vehicle and lowering the chance of occupant ejection." Id. ¶ 64. The National Highway Transportation Safety Administration ("NHTSA") "has repeatedly urged parents to purchase vehicles with automatic door locks." Id. ¶ 66. The inability to lock the doors while in motion places drivers at risk because it increases the risk of carjacking. Id. ¶¶ 68, 70–71. In addition, it permits passengers, such as young children, to open the doors while in motion because neither the autolocking system nor manual override permit them to be locked. Id. ¶ 67. At least 14 consumers reported doors opening while in motion. Id. ¶ 51.

Plaintiffs also allege that the audio and visual signals are allegedly distracting to drivers, causing some to pull over and check the doors, placing them at risk of being struck by vehicles on the roadway. See FAC ¶¶ 72–77. In particular, when the interior dome lights remain on, especially at night, there is a "reduction in object visibility resulting from diminished contrast" as well as a distraction "from what is going on outside the car at night." Id. ¶ 77.

Finally, because the lights will not turn off when the vehicle thinks the doors are open, even when the vehicle is off or parked, the battery may drain and has drained for several Plaintiffs and consumers. See , e.g. , FAC ¶ 54.

Plaintiffs allege violations of various state consumer fraud laws, breach of implied warranty, and breach of express warranty. Plaintiffs, their vehicles, and their states are listed in the chart below.

Name Vehicle State Purchase Date
David Baranco         2013 Ford Edge        CA        May 2016
James Abbitt          2013 Ford Flex SE     NC        August 2013
Harriet Abruscato     2013 Ford Edge        IL        N/A
Donald Brown          2013 Ford Edge        NH        Early 2014
Daniel Caron          2013 Ford Flex        NM        August 2013
Anita Farrell         2012 Ford Edge        FL        November 2013
John Furno            2013 Ford Edge        IL        January 2014
James Jenkin          2013 Ford Edge        NY        August 2014
Roger Kinnunen        2011 Ford Edge        MI        July 2011
Gary Kubber           2013 Ford Edge        NY        May 2014
Malisa Nicolau        2013 Ford Edge        CA        June 2015

In support of its motion, Ford also submits the Closing Resume from the Office of Defect Investigations in the National Highway Transportation Safety Administration (NHTSA), which summarizes its investigations and findings related to the door lock defect.¹ See Docket No. 36–2 ("NHTSA Findings"). The NHTSA Findings indicate that the NHTSA opened an investigation in September 28, 2016 and closed it on March 20, 2017 into a total of 1,983 complaints related to door ajar warning lights in 2011–2013 Ford Edge vehicles. Reported safety consequences included "doors opening while driving (because doors were initially not latched properly), doors cannot be locked while driving, and the interior dome lights staying on continuously." NHTSA Findings at 1. The failures were caused by the same defect described in Plaintiffs' complaint. Id. The NHTSA identified 14 complaints in which a door opened while driving, 12 out of 14 involving an incident where "an occupant of the vehicle (often a child) opened a passenger door because the doors were not...