BMW Can’t Steer Clear of Liability in Engine Defect Class Action

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BMW’s arguments seeking to dismiss a proposed engine defect class action lawsuit are without merit and should be denied, according a vehicle owner’s plea asking a New Jersey federal court to reject BMW’s motion to toss the consumer complaint.

Plaintiff David Afzal challenged the car maker’s dismissal brief, contending that his amended class action lawsuit comprehensively details that BMW knew or should have known that the BMW S65 motor suffers from a defective rotating assembly that results in excessive bearing wear which can lead to catastrophic engine failure at any time without warning.

The engine defect is alleged to manifest itself during and shortly after the limited warranty period for the vehicles, and the class action lawsuit claims that BMW has refused to disclose the existence of the engine defect in many cases.

“BMW-NA’s brief disingenuously disclaims BMW-NA’s knowledge of a well-known and widely reported defect involving the BMW M3’s rotating assembly,” the opposition brief stated. “Contrary to defendant’s cherry-picked citations to plaintiff’s complaint, the first amended complaint comprehensively details how the rotating assembly defect causes the bearings in the M3’s engines to disintegrate, fracture, and ultimately cause catastrophic engine failure.”

Afzal initially filed the BMW engine defect lawsuit in November, alleging he took his 2011 E90 M3 to the dealership on two occasions when he noticed the vehicle was making rattling and knocking sounds. Both times, he was allegedly informed that the noises were common and that his warranty did not cover investigative repairs.

It was after he took his car to an independent repair shop, he was told that the BMW’s rod bearings were excessively worn and there was a dangerous possibility of catastrophic engine failure, according to court documents.

The lawsuit also alleges that, while BMW has long been aware of the engine defect, it has refused to repair without charge vehicles manifesting the defect, has failed to disclose the existence of the defect in many cases, and has failed to take any action to correct the defect when it manifested shortly outside of the warranty period.

“It is simply too late to say that BMW-NA would have taken care of the issue after it had been diagnosed by an inspection the customer paid for out of pocket,” the opposition brief said. “BMW-NA cannot take a wait-and-see approach, providing warranty coverage only when an inspection from a third party, paid for by the customer, yields unequivocal proof of a defect in the vehicle.”

BMW sought to dismiss the case back in January, arguing that the claims were too broad. Afzal filed an amended complaint shortly after to include claims of breach of express and implied warranty, common-law fraud, breach of duty of good faith and fair dealing, as well as violations of state consumer fraud statutes.

In March, BMW again asked the court to toss the amended class action lawsuit.

Afzal opposes BMW’s arguments that the amended complaint is without merit and that the auto-giant’s advances to dismiss are unavailing.

Specifically, Afzal says that BMW warranty claim arguments fail and show a “fundamental misunderstanding” of factual allegations and the legal standards governing express and implied warranty claims.

For instance, BMW attempts to shield itself from liability by stating that Afzal failed to provide BMW with notice and opportunity to repair the alleged engine defect. But Afzal contends that he took his car to an authorized BMW dealer within the factory warranty period seeking repairs on two separate occasions but was denied any further investigation or repairs under his warranty.

Additionally, BMW claims the plaintiffs’ fraud allegations do not meet heightened pleading standards but Afzal argues that the complaint details specific allegations from a multitude of sources.

He states that BMW knew or should have known about the engine defect through numerous complaints made to the National Highway Traffic Safety Administration, on consumer forums, and most significantly from Technical Service Bulletins that BMW itself issued to dealers describing the defects in question.

Finally, Afzal disputes BMW’s motion to dismiss California consumer protection claims and good faith and fair dealing claims, stating that they “similarly suffer from fatal deficiencies and errors,” and that he has satisfactorily supported the charges.

Afzal claims that he and other, similarly situated owners have incurred losses as a result of BMW’s actions that include costs to repair the engine defect and a loss in the value of their vehicle.

The lawsuit is seeking to recover the cost of repairs and other out-of-pocket expenses incurred by owners of the Class vehicles.

Afzal is represented by Matthew D. Schelkopf and Joseph B. Kenney of Chimicles & Tikellis LLP, Paul Scarlato of Goldman Scarlato & Penny PC and Benjamin I. Siminou of Thorsnes Bartolotta McGuire LLP.

The BMW M3 Engine Defect Class Action Lawsuit is Afzal v. BMW of North America LLC, et al., Case No. 2:15-cv-08009, in the U.S. District Court for the District of New Jersey.

UPDATE: On Oct. 18, 2016, a federal judge ruled that Afzal’s class action lawsuit will continue despite dismissing several claims including fraud and breach of implied warranty.