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A federal judge on Tuesday granted Ford’s motion to dismiss warranty claims from a class action lawsuit over allegedly defective tailgates in Ford Explorer, Lincoln Aviator and Mercury Mountaineer SUVs, but stopped short of dismissing the case entirely.
Plaintiffs in the consolidated Ford tailgate class action lawsuit alleged that Ford Motor Company knew that tailgate panels cracked on certain sport utility models, but concealed this defect from consumers.
The Ford cracked tailgate class action lawsuit involves 30 named plaintiffs from 25 states who seek to represent a nationwide class of millions of current and former owners or lessees of Ford vehicles. The plaintiffs allege that due to faulty manufacturing, the 2002-2005 Ford Explorers and Mercury Mountaineers, and 2003-2005 Lincoln Aviators were defective because the panel on the rear liftgate of the vehicles is prone to cracking, posing a safety hazard. None of the named plaintiffs claim the panels their vehicles exhibited any cracking during their warranty period.
“Ford first argues that plaintiffs’ express and implied warranty claims must be dismissed because none of the plaintiffs aver that the alleged defect (i.e., the cracked tailgate) manifested during the warranty period,” the judge wrote. “In response, plaintiffs counter that the alleged defect is not a cracked tailgate but rather a defective tailgate made from material prone to cracking. … In other words, according to plaintiffs, a cracked tailgate is simply a by-product of the defect and not the defect itself.”
The judge agreed with Ford, stating, “Ford persuasively argues that a majority of states have rejected similar latent defect claims, invoking cases from many—though not all—of the states in which plaintiffs bring express warranty claims.” Further, “Ford also points to a Ninth Circuit case recognizing that California has adopted this majority position: ‘The general rule is that an express warranty does not cover repairs made after the applicable time or mileage periods have elapsed.'”
Judge Seeborg also dismissed the breach of implied warranty claims, stating that the Uniform Commercial Code, “as adopted by each of the plaintiffs’ states, permits sellers or manufacturers to limit expressly the duration of any implied warranties, as does the federal Magnuson-Moss Warranty Act,” and “Plaintiffs do not challenge Ford’s ability to impose such a limit. … Nor do they make any allegation that this particular provision was unconscionable.”
“Instead, plaintiffs assert that the same latent defect theory discussed above makes this provision inapplicable as the vehicles were therefore not fit at the time of sale,” the judge wrote. “In the absence of any allegation by plaintiffs that the durational limit here was unconscionable or otherwise invalid, plaintiffs implied warranties claims must be dismissed without leave to amend.”
However, the judge refused to dismiss some of the plaintiffs’ consumer protection and deceptive trade practices claims.
The plaintiffs executive committee is represented by Matthew L. Cantor, Sylvia M. Sokol and David A. Scupp of Constantine Cannon LLP; Keith G. Bremer and Alison K. Hurley of Bremer Whyte Brown & O’Meara LLP; and Grant L. Davis, Thomas C. Jones and Timothy C. Gaarder of Davis Bethune & Jones LLC.
The consolidated Ford Cracked Tailgate Class Action Lawsuit is In re: Ford Tailgate Litigation, Case No. 3:11-cv-02953, in the U.S. District Court for the Northern District of California.
Join a Free Ford Cracked Tailgate Class Action Lawsuit Investigation
If you purchased, owned or leased a model year 2002-2005 Ford Explorer, 2002-2005 Mercury Mountaineer, and/or model year 2003- 2005 Lincoln Aviator and experienced any of the following problems, you may have a legal claim:
- Ford Explorer cracked tailgate
- Mercury Mountaineer cracked tailgate
- Lincoln Aviator cracked tailgate
- Shattered backlite (rear window)
- Ford applique crack
- Applique separated, fell off or flew off from the vehicle
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36 thoughts onFord Cracked Tailgate Class Action Lawsuit Trimmed
I also have a 2004 Mercury Mountaineer with the same crack. We bought it and shortly thereafter a big crack down the center of the rear panel which sucks. I would like to be added to this class action lawsuit as well.
The crack just showed up in my garage kept 2004 Mountaineer. Since then I have notice dozen of vehicles with same problem. Talked with a few owners and they never reported it after finding out they would have to pay to fix. Ford should own up to their responsibility to all Ford Products owners. This not a mechanical part that wears out with use. This is a body part that should have no maintenance except a wash job.
I also own a 2005 Aviator with the same cracked tailgate. The first occurred within my months of warranty but my miles had just exceeded factory warranty so the dealer repaired for their cost of parts and I accepted the compromise. Now I also notice a rough feel on repaired and reprinted tailgate like the clear coat and top coat paint finish has worn off. This is also less than paper thin, a very strange exterior finish indeed and has only occurred on the reprinted tailgate.
Please add me to your list of customers who have suffered a financial loss due to trust in Ford’s product line.
My 2004 explorer has always been kept in a heated garage and not driven in the winter until this year. sometime in the last 4 days, this same crack has now appeared on mine as well. It has to be because of water freezing behind the plastic. my hatch was not opened or closed during this time. Put me on the class action list.
I owned 3 Mountaineers, and 1 Aviator, all cracked. I replaced some of the panels and they all cracked again. The Aviator I still own and it has multiple cracks. If the design wasn’t the fault why did Ford change to a single panel in 2006? And let’s talk about that lousy 4.6L engine that runs on 7 cylinders instead of 8. I’ve had it with Ford.
I own a 2005 Lincoln Avator purchased in 2005. This tailgate crack happened while under warranty but I didn’t know it was a FMC issue and my insurance covered it. In march of 2013 it cracked again so I called my insurance company and they said it was a factory defect and to call Ford. Ford said its out of warranty sorry. So I signed up for this class action suit and and now no help.
Every so often this Ford tailgate defect resurfaces, Ford and anybody who will listen have known about this panel for over a decade. All you have to do is go outside and look at any Ford Explorer from 2002- 2005, if the panel isn’t cracked than I am surprised. I personally have experienced 2 cracked panels because the first was replaced. I have called Ford and they were very pleasant but took my information and that was that, I received emails from attorneys who are looking into this matter never to here anything back. I have lost all faith that we as the consumers will be compensated in any way by Ford. If we were then they woiuld have to admit they knowingly sold vehicles to consumers with this defect. If anyone who bought one of these vehicles is like me I do not like driving around in a vehicle with cosmetic deficiencies, but I refuse to invest in another panel that will in fact crack. I also feel having this cracked panel along with the other thousands of Ford owners driving around with cracked panels is a sign of” BUYER BEWARE”. So FORD this cracked panel is actually free advertisement. No need to thank us.
I have a 2003 ford explorer and have been Iwell aware of this defect for years .Look at those model years and about 30 percent have the same crack in the tailgate in the ny area. I complained to Detroit headquarters years ago and got nowhere ! The dealership had knowling and willing lied to me as well as Ford headquarters and the Dept of consumer complaints at detroit. .that I call deceptive practices . I have not bought a Ford since!
I have an 2004 Ford Explorer and it is the only defect on the car. I live in Kansas City, fix it FORD!
is there still a lawsuit pending of the tail gate applique breaking Im trying to find out how to get in on the lawsuit? My tail gate keeps cracking and water is coming in cause of it…I would like to be on this class action lawsuit as well Kimberlee gorski
My Ford Explorer 2003 purchased in Alberta, Canada has the same problem and I noticed it on other Ford Explorers so finally an answer. My Serviceman did not want to acknowledge it.
My Lincoln Aviator while parked in the drive way shows the back tail gate glass on cctv the whole window giving way and breaking. No one around.