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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
HAVE A 2005 FORD EXPLORER BOUGHT NEW IN 05. IN 2009 TAILGATE CRACKED FOR NO REASON. THEN AFTER AWHILE THE BACK GLASS SHATTERED NO ONE NEAR IT BUT HEARD IT
2004 Ford Explorer XLT with 67K miles. Well maintained. Got this rear tailgate crack over a year ago out of the blue. I have no idea how that just appeared. It is not only unpleasing to the eye, but I worry that this can/will pose a safety hazard to the rear glass – I’ve read other owners who shattered their glass as a result! I do hope that the class action suit is successful because a significant amount of complainers just can’t be coincidental.
My 03 Aviator has the two cracks on each side of the lincon emble and even worse is the liftgate lock was completely rusted and fell apart into peices. Now it wont close all the way or unlock and when that all happened now all my door locks stoped working they all need to be Manually locked and unlocked.
The plastic panel on my 2003 explorer tailgate cracked and was replaced under warranty. The replacement also failed. It has two vertical cracks, one right thru the blue oval.
Not only is the panel cracked on my 2003 Aviator but when I went to the car wash one of the brushes caught the edge of the panel that was starting to lift (without my knowledge). As a result, half of the panel was torn off the back.
Is it too late to be added to the class action?
My 03 Aviator, 37,000 miles and always garage kept, has a crack on the rear hatch applique. Add me to the lawsuit.
My 2005 Mercury Mountaineer tailgate just cracked 3 months ago. I was under the impression that this only happened to cars that were parked outside; however, I found out differently as I park my car in my garage.
Having been a proud Ford owner for years, I am thoroughly amazed at the failure of Ford to step up to the plate and make the Repairs. I recall when they had problems with quality in the late 60’s and 70’s and came up with the Marketing Slogan “Quality is Job One” turning the company’s reputation around. Apparently years of loyalty and profit at Ford has provided the atmosphere that allowed the Company executives to forget what is important. Now if a problem like this is dismissed. Why wouldn’t they practice the same tactics if an issue involved Safety. I can no longer trust Ford and am driving the last one I will ever purchase. Add me to the suit.
I also own a 2002 Ford Explorer that has the crack on the tailgate. I live in Sacramento California. Every time I go somewhere, someone flags me down who has the same crack issue and asks me if I know how they can “get this fixed”. I told them the local Ford Dealer has advised me that Ford will not issue a recall on it because it is not a “safety” hazard. Not sure what any of us can do, but I agree with everyone… this is NOT FAIR. I love my Explorer, so does everyone else that has brought up the same issue. You would think Ford would do something about it for their reputation, if nothing else.
I have a 2003 Lincoln Aviator never been in an accident parked in the drive way. On CCTV with no one around the glass shatters at the rear tail gate into pieces. 11 am in the morning. No one around on CCTV. Explain that one Ford