BMW Rollaway Class Action Lawsuit Dismissed Again

A federal judge in New Jersey dismissed a second amended complaint brought against BMW in a consumer class action lawsuit accusing the car maker of hiding transmission defects that caused BMW cars to roll away after shifting from park to neutral.

Lead plaintiff Monica McQueen filed the class action lawsuit against BMW in 2012, alleging that BMW “7-series” sedans sold between 2002 and 2008 were defective. The BMW class action lawsuit was based on McQueen’s claim that her used 2004 BMW 745i shifted into reverse when she had it in park, causing an alleged $4000 worth of damage.

McQueen’s first class action lawsuit was dismissed in August 2012 for failure to establish the existence of a defect and failure to establish that BMW’s knowledge and awareness of the alleged defect. In her second class action, McQueen argued that the rollaway that damaged her car was the result of two separate defects that together cause the transmission to shift unexpectedly into neutral. McQueen argued BMW violated New Jersey’s Consumer Fraud Act, the Magnuson-Moss Warranty Act, and the Uniform Commercial Code’s implied warranty of merchantability.

On Feb. 19, Judge Stanley R. Chesler dismissed all of McQueen’s claims with prejudice, finding that McQueen did not demonstrate that BMW hid or even knew about the existence of the two defects in their 2002-2008 7-series.

The judge characterized McQueens claims as follows: “[b]roadly speaking, Plaintiff now alleges the rollaway that damaged her 7-series was the result of two separate defects that, when operating together, cause the transmission to shift unexpectedly into Neutral. The [plaintiff] labels these two defects the ‘Logic Defect’ and the “Random Event Defect.’ the [plaintiff] equates the ‘Logic Defect’ to an erroneous engineering decision made by BMW…The ‘Random Event Defect’ is more esoteric…The [plaintiff] appears to allege that BMW’s failure to account for ‘the possibility of random, non-repeatable failures…in electronics and software components’ renders Plaintiff’s non-CAS 7-series defective.”

The judge further stated, “Plaintiff alleges that ‘things go wrong’ randomly in more complex automobiles, and it is a defect in design for a car’s transmission to default to Neutral which such an event occurs.”

In dismissing the second BMW class action lawsuit, the judge noted “a close reading of [the complaint] reveals that Plaintiff’s allegations … remain fatally deficient.”

The judge pointed out “the Court cannot credit the [complaint’s] conclusory allegations regarding BMW’s knowledge or awareness of the defects … which allege that BMW had ‘notice’ or or ‘knowledge’ of the alleged defect” and that “‘consumer complaints’ or ‘demands for repairs,’ are of little utility … [the plaintiff] provide[s] no facts describing those complaints or demands.”

The judge further pointed out that “Plaintiff cannot equate design choices with fraudulent conduct simply by saying so and with out pleading facts supporting a plausible inference of knowledge on BMW’s part.”

The judge further dismissed McQueen’s warranty claims noting, “[t]he Court’s previous Opinion dismissed the warranty-based claims for the simple reason that the [plaintiff’s first complaint] did not plead that the alleged defect had manifested itself within the terms of the BMW’s four year/50,000 mile warranty…The [plaintiff’s second complaint] still does not allege that Plaintiff discovered and reported the alleged defect to BMW within the terms of the warranty.”

The judge disagreed with McQueen’s argument that because BMW allegedly knew of the design defect before the warranty expired, stating, “the Court is unwilling to depart from the general and well established rule that a breach of warranty claim cannot be based on a defect that first manifests itself after the time or use limitations imposed on the express warranty have expired.”

The judge further noted, “[p]laintiff’s argument is contingent on the assumption that the [complaint] plausibly pleads BMW’s knowledge of a defective transmission in non-CAS 7-seies sedans. But as already been discussed … nothing in the [complaint] plausibly indicates BMW’s awareness of any defect in Plaintiff’s non-CAS vehicle or action by BMW to conceal such a defect.”

Monica McQueen is represented by Scott Alan George and Jonathon Shrub of Seeger Weiss LLP, Richard J. Burke and Jamie Weiss of Complex Litigation Group LLC, and Adam J. Levitt and Edmund S. Aronowitz of Grant & Eisenhofer PA.

The BMW Rollaway Class Action Lawsuit is McQueen v. BMW of North America LLC, et al., Case No. 2:12-cv-06674, in the U.S. District Court for the District of New Jersey.