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Legal Attack on Toyota Widens Following Second Auto RecallA lawyer with a pending lawsuit against Toyota has filed a new suit in light of the carmaker's recent recall of 2.3 million vehicles due to sticking accelerator pedals. "What we have is a fleet of automobiles that accelerate when people don't intend them to," said Michael Kelly, managing partner of Los Angeles-based Kirtland & Packard, who filed a class action on Friday against Toyota on behalf of its customers. The recall, announced Thursday, is the second in recent months for Toyota.
The National Law Journal2010-01-26 12:00:00 AM
A lawyer with a pending lawsuit against Toyota Motor Sales USA Inc. filed a new suit in light of the carmaker's recent recall of 2.3 million vehicles due to sticking accelerator pedals.
"What we have is a fleet of automobiles that accelerate when people don't intend them to," said Michael Kelly, managing partner of Los Angeles-based Kirtland & Packard, who filed a class action on Jan. 22 against Toyota on behalf of its customers.
The recall, announced on Jan. 21, is the second in recent months for Toyota. On Sept. 29, Toyota issued a safety advisory regarding floor mats that caused accelerator pedals to get stuck. Ultimately, Toyota recalled approximately 4.2 million vehicles due to the floor mat issue.
Kelly filed suit in federal court in Los Angeles on behalf of two Toyota owners in Southern California. One plaintiff, Joseph Hauter, experienced "sudden, unexpected acceleration" of his 2008 Toyota Tundra while his foot was on the brake pedal at a service station. The car accelerated a second time after Hauter put on the brakes while approaching a left turn lane. In both cases, the acceleration stopped after he put the car in park.
In his first suit, filed on Nov. 17 in federal court in Los Angeles, Kelly represents two Southern California customers, one of whom has experienced "sudden, unexpected acceleration" of his Lexus, according to the complaint.
Both suits allege violations of California's Consumers Legal Remedies Act and California's Unfair Competition Law, as well as false advertising, breach of implied warranty and negligence. Kelly said that the allegations address Toyota's misrepresentations to consumers.
"You sold people something you represented to be safe, and it wasn't safe," he said. "We want them to make it safe."
Both cases seek damages on behalf of a class of thousands of consumers nationwide and in California who own a Toyota vehicle with an electronic throttle control system.
One of the key issues, according to both suits, is that since 2001 Toyota began installing electronic throttle systems, which operate through electronic signals sent from the gas pedal to the engine throttle. The system lacks a mechanical linkage between the accelerator and the engine throttle control, nor does it have a fail-safe measure that triggers when the brake is applied. The lack of the safety systems prevents a driver from overriding the throttle in order to stop or slow the car.
The electronic system is at the heart of personal injury suits against Toyota, said Donald Slavik, a partner at Milwaukee's Habush Habush & Rottier, who has filed one such suit against Toyota over the acceleration issue and has two others under investigation.
"Many of these incidences and accidents of unwanted acceleration had nothing to do with floor mats, and certainly a lot of them don't sound like just a sticking accelerator pedal," Slavik said. "The recall here, at some point, is being evaluated. But my initial impression is it doesn't match the fact pattern of any cases right now."
Slavik represents Bulent Ezal, whose Toyota Camry suddenly accelerated in a restaurant parking lot atop a cliff in Pismo Beach, Calif., and plunged 70 feet into the ocean. Ezal suffered minor injuries, but his wife died. A trial date is expected to be set at a case management conference next month, he said.
The recent recalls, and related lawsuits, come a few months after a lawsuit was filed against Toyota alleging that the carmaker hid and destroyed evidence in cases involving victims of rollover accidents. In November, a federal judge ordered that the suit, filed by Dimitrios Biller, who was the national managing counsel in the legal services group in charge of Toyota's rollover crash litigation from 2003 until his resignation in 2007, be sent to arbitration.