BMW Leaky Trunk Class Action Survives Second Motion to Dismiss

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A BMW class action lawsuit alleging a design defect causes electrical damage to occur, will continue after a federal judge found that the car manufacturer’s motion to dismiss raised arguments already addressed in a prior motion.

U.S. District Judge Katherine B. Forrest determined that in asking for dismissal of plaintiff George Catalano’s claim under New York General Business Law, defendant BMW was essentially asking the court to revisit its March 2016 decision in which it allowed that claim to go forward.

Judge Forrest said that BMW offered no new basis for the court to reconsider its decision on that claim.

In addition, Judge Forrest will also allow Catalano’s claim for fraudulent concealment to go forward after finding that Catalano adequately re-pled that claim in his second amended complaint.

In the same opinion and order, Judge Forrest granted Catalano’s motion to compel discovery. At the same time, the judge said that since Catalano is demanding documents and information that would have to come from BMW facilities in Germany, the parties must come to an agreement about what discovery requests would be reasonable.

BMW had asked the court to require discovery to be conducted under procedures of the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. But Judge Forrest determined that since BMW consented to the court’s jurisdiction, the usual federal rules for discovery will apply.

Catalano filed this BMW class action lawsuit in June 2015. He alleges that a design defect in certain BMW models makes the drainage tubes in the cars’ sunroofs prone to breaking and leaking. These leaking tubes allegedly allow water to collect in trunk and cargo areas, where electric components are located that are essential for engine control.

In his second amended complaint, Catalano now alleges BMW knew since as early as 2004 that the defective components in these vehicles would fail under ordinary use and conditions. He claims BMW had access to information about the alleged defects, as evidenced by customer complaints, warranty claims, service bulletins issued to dealerships, and communications with brand-authorized technicians.

At the same time, he alleges, BMW actively concealed that information from interested third parties like the National Highway Traffic Safety Administration. Catalano claims that if he had been aware of this defect earlier, he never would have purchased his BMW.

The vehicles at issue in this BMW class action lawsuit are the X5 from model years 2000 to 2008, the X3 from 2004 to 2010, and the 5-series vehicles from 2004 to 2010.

Catalano is represented by Edward A. Wallace and Amy E. Keller of Wexler Wallace LLP; William A. Kershaw, Stuart C. Talley and Ian J. Barlow of Kershaw Cutter & Ratinoff LLP; Stephen M. Harris of The Law Offices of Stephen M. Harris PC; Robert L. Starr of The Law Offices of Robert L. Starr; and Joseph R. Santoli of The Offices of Joseph R. Santoli.

The BMW Leaky Trunk Class Action Lawsuit is George Catalano v. BMW of North America LLC, Case No. 1:15-cv-04889, in the U.S. District Court for the Southern District of New York.

UPDATE: On Feb. 2, 2017, BMW agreed to settle this class action lawsuit. Under the terms of the proposed settlement, Class Members can take their vehicles to an authorized BMW center to receive an inspection for water damage and electrical damage and, if water damage is discovered, the BMW center will repair and replace the affected modules at no cost.

UPDATE 2: The BMW Electronic Component Water Damage Class Action Settlement is now open! Click here to file a claim.