BMW owners Monita Sharma and Eric Anderson have filed an amended third class action complaint in the U.S. Northern District Court of California, San Francisco division, alleging their vehicles suffered water damage after the drainage tubes installed to pull water away from the sunroofs did not properly work. “[The court] determined that plaintiffs’ Consumer Legal Remedies Act and the Unfair Competition Law claims could not stand because there were insufficient allegations in the complaint to establish that BMW was aware of the safety defect at issue before the plaintiffs purchased their vehicles. However, the court granted plaintiffs the right to amend their complaint to remedy this deficiency,” according to court documents.
“This is a class action lawsuit brought on behalf of individuals [California residents who have owned or leased any BMW X5 series vehicles, X3 series vehicles and 5 series vehicles] … that were manufactured between 1999 and 2008. The plaintiffs allege that the class vehicles were manufactured with a serious safety defect that may cause the vehicles to lose power while driving, rendering them unmerchantable,” plaintiffs’ attorneys allege.
“Specifically, the plaintiffs assert that BMW chose to locate vital electronic equipment for the vehicles in the lowest part of the trunk and that this makes the equipment particularly prone to water damage. When this electronic equipment gets wet, the vehicles will suddenly lose power.
“Plaintiff Monita Sharma purchased her BMW in May 2009, and plaintiff Eric Anderson purchased his BMW in March 2012. These purchases were made after BMW knew about the safety defect and circulated a secret service bulletin advising its repair facilities to relocate the faulty electrical equipment and warn consumers to avoid placing water in the affected vehicles’ trunks and BMW received customer complaints on the issue, including complaints from the National Highway and Transportation Administration (NHTSA), as described in plaintiffs’ third-amended class action complaint,” they add.
The plaintiffs’ allege BMW knew of the “defect” because it released the “secret service bulletin” dated August 2009, which replaced an earlier February 2009 bulletin, to various authorized service providers. “In this service bulletin, BMW repair facilities are instructed to replace water damaged modules and move them to another, less vulnerable, location of the trunk,” attorneys claim. “The bulletin also instructs repair facilities to place a permanent warning placard in the trunk that specifically warns owners that there is vital electrical equipment in the trunk and to avoid allowing liquids into this area of the vehicle. The service providers are also instructed to verbally notify class members ‘of the label and the fact that liquids should not be present on or under the trunk insulation, due to the sensitive nature of the electronic control units located in the spare tire well.’”
“[T]he above-described conduct is a breach of the implied warranty of merchantability and violates both the California Consumer Legal Remedies Act and the California Unfair Competition law. With this action, Plaintiffs seek 1) to obtain a refund for all consumers who incurred out-of-pocket expenses associated with the repair and/or replacement of water damaged SDARS, PDC, or RDC modules, 2) obtain damages associated with the loss of the benefit of the bargain, and/or 3) obtain an injunction ordering BMW to notify class members about the defect at issue and to repair the defect by moving all SDARS, RDC and PDC Modules pursuant to its own internal service bulletin,” attorneys claim.
“BMW systematically, purposefully, and fraudulently concealed the defects and misled customers by telling them that any problems in connection with the defects were actually caused by customers’ failure to maintain their vehicles properly and/or by ‘outside influences’—by claiming, for example, that the flooding in the trunk and electronic damage was not due to design defects but rather due to the customer’s failure to clean out the sunroof drain tubes and/or even telling class members that such damage was merely due to weather,” attorneys write.
Plaintiffs seek a court order certifying class action status, injunctive relief, as well as damages and attorneys’ costs. They want a jury trial.
At press time, BMW’s attorneys had not responded to the complaint.