On appeal from the Division of Consumer Affairs.
Approved for Publication November 7, 1997.
Before Judges Shebell *fn1, D'Annunzio and Coburn. The opinion of the court was delivered by D'annunzio, J.A.D.
The opinion of the court was delivered by: D'annunzio
The opinion of the court was delivered by
The lessee of a Nissan automobile appeals from a final decision of the Director of the Division of Consumer Affairs (Division), rejecting appellant's claim under New Jersey's "Lemon Law" (Act). N.J.S.A. 56:12-29 to -46. We now reverse and remand.
The claimant, Carol Christelles, and her expert witness, Gary Quick, testified in the proceedings before an Administrative Law Judge (ALJ). Christelles testified that she took delivery of the Nissan from the dealer, Warnock, on July 18, 1995. On October 6, 1995, when the vehicle had 2,019 miles on it, Christelles was driving it between 55 and 60 miles per hour on Interstate Route 78 when the vehicle began to buck, all the panel lights came on, and the vehicle stalled. She was able to restart the vehicle and continue her journey. The vehicle stalled on several occasions for the remainder of her trip to downtown Newark, and from there it was towed to Warnock. Warnock had the vehicle from October 6 to October 27 and attempted to repair it. On November 2, 1995, five days later, Christelles was driving to her sister's house in Hillside when she experienced bucking and stalling. Again, all the panel lights came on. The vehicle was again towed to Warnock where a repair was attempted. Christelles retrieved her vehicle on November 8.
On November 13, 1995, while she was travelling on Interstate 78, the vehicle bucked and then stalled. She was able to restart it after fifteen minutes and drive the vehicle. It stalled again, followed by another restart, followed by another stall and restart. The vehicle was towed to Warnock.
The vehicle stalled on February 23, 1996, and on February 24, 1996, Christelles wrote her "last chance" letter to Nissan. N.J.S.A. 56:12-33b. She had received no response by March 1, 1996 when the vehicle stalled again. The car was taken to Warnock and a Nissan representative told her that they were not able to duplicate the problem. Christelles testified that it stalled on June 4 and was in Warnock's service center from June 11 to June 24. She also testified that it stalled on July 13, 1996. The hearing before the ALJ was on September 4, 1996 and, at that time, the mileage was 12,800.
Christelles further testified that the problem occurred in wet and rainy weather and that Warnock finally had told her that it was not going to touch the car because it could not duplicate the problem. Andrew Christelles, Carol's husband, testified, corroborating some of the events described by Carol.
Gary Quick qualified as an expert in automotive repair and computer diagnosis. Christelles had retained him four or five days before the hearing. Quick testified that weather is a primary problem with electronic systems in modern-day vehicles. According to Quick, damp moist days can have an adverse effect on electronics because moist air can get into a circuit if it has not been sealed properly, thereby causing the circuit to malfunction. In addition to a defective weather seal on a connector, other possible causes of a stalling problem are inadequate grounding or a defective connection. A transmission problem can also cause the stalling phenomenon. According to Quick, diagnosis of these problems is often very difficult. Quick ultimately opined that the cause of the stalling was an electrical problem due to a poor ground or a faulty connection which will manifest itself on wet and damp days. Quick stated that the actual location of the problem may be impossible to find. Quick had been unable to duplicate the problem or to diagnose it more specifically.
Carlos Ferreira was Nissan's sole witness. He is employed by Nissan as a dealer technical specialist, and he assists dealers in the diagnosis and repair of difficult to repair vehicles. He provides the dealers with technical information. Ferreira drove the Christelles' vehicle twice because the dealership asked him for help. He could not duplicate the condition, and a computer diagnosis of the car's electronic system resulted in no positive findings. He agreed, however, that the computer would not detect mechanical failures. At one point in his testimony, he appeared to assume that there was, in fact, a problem and testified that he could not say with one hundred percent assurance that it was an electrical problem. However, he finally testified that because he was not able to duplicate the problem, he was satisfied that there is no problem.
On cross-examination, he admitted that he had experience with stalling vehicles where the cause of the problem was not detected by the computerized diagnosis. He also conceded that it is possible for a circuit to open temporarily and then close, in which event the computer would not detect a problem.
In a written initial decision, the ALJ rejected Christelles' claim and the Director of the Division adopted the ALJ's ...