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For the second time, a class has been certified to include potentially 10,000 Pennsylvanians who complain that their Kia Sephia cars were fitted with defective braking systems that wear prematurely, shudder and often don’t stop the vehicle. Also for the second time, a judge didn’t include in the certification the consumer protection claim plaintiffs brought against Kia Motors America under the Pennsylvania Unfair Trade Practices and Consumer Protection Law. The case, Samuel-Bassett v. Kia Motors America Inc., was first certified by a federal judge in 2002. Kia appealed the certification. The 3rd U.S. Circuit Court of Appeals, without considering whether the case was suitable for class status, noticed something else: the case didn’t belong in federal court. The appeals court sent the case back to the district judge in February to determine whether the claims of individual class members were enough to satisfy the $75,000 minimum required to establish federal diversity jurisdiction. U.S. District Judge Curtis Joyner remanded the case to state court, where the lead plaintiff and Philadelphia resident Shamell Samuel-Bassett had originally filed it in 2001. Philadelphia Common Pleas Judge Mark I. Bernstein certified Samuel-Bassett on Sept. 17, saying the proposed class’ claims for breaches of implied and express warranties could go forward. “There is sufficient record evidence that defendant knew that a vast number of its Sephia automobiles between 1997 and 2001 required replacement of brake pads and rotors at intervals of less than 5,000 miles,” Bernstein wrote. Brake pads are supposed to last between 20,000 and 30,000 miles. The Kia manual recommends that the Sephia owner schedule a brake pad check by 30,000, Bernstein noted. He highlighted some of the statistical evidence presented by the plaintiff: 55 percent of all Sephia 1997 models, 88 percent of the 1998 models and 70 percent of the 1999 models required brake repair within the first year of being driven. If the brakes didn’t need repair in the first year, more than a third of each of those models needed repair in the second, Bernstein observed. “This data clearly indicates a systemic brake problem, identified by plaintiffs as related to a design defect causing inadequate heat dissipation from the front brakes,” the judge wrote. He found that Samuel-Bassett had met all the requirements of class certification under Pennsylvania’s rules of civil procedure for her breach of warranty claims but not regarding her consumer protection claim. That claim failed to satisfy the commonality requirement, which means there must be questions of law or fact common to the individual members of the class, Bernstein explained. To prove common-law fraud and violation of the state UTPCPL, “plaintiffs must show that they suffered harm as a result of detrimental reliance” on the car manufacturer’s fraudulent conduct, Bernstein wrote. The state Supreme Court held in 2001 that that causation requirement for all private UTPCPL actions presents “questions of fact applicable to each individual private plaintiff that would be ‘numerous and extensive,’” Bernstein explained. He added parenthetically, “The same is true in this case. This cannot be established using classwide proof.” “While one might question whether such a fundamental, dangerous and potentially life-threatening defect as one involving proper breaking could be of such importance to any reasonable vehicle purchaser as to permit presumed class reliance, our appellate courts have clearly and uniformly defined the law as requiring individualized proof of reliance even under the ‘catch-all’ clause of the UTPCPL unless there exists a ‘fiduciary’ relationship between the parties.” Michael D. Donovan, one of the lawyers representing the class, said his client’s UTPCPL claim was one alleging breach of warranty and not alleging fraudulent misrepresentation as did Weinberg v. Sun Co. and Debbs v. Chrysler Corp., two Supreme Court decisions that Bernstein relied on in his opinion. “We don’t believe that Debbs or Weinberg applies to a breach of warranty claim under the consumer protection law,” Donovan said. That is, “reliance is not an issue that needs to be proved in all consumer protection cases,” said Jim Francis, another lawyer for the class. “That’s something the Supreme Court will have to clarify. There just hasn’t been a case yet.” Donovan, of Donovan & Searles, said his client won’t appeal because “we believe we’ll obtain similar relief under the counts the court did certify.” “We’ll undertake to advise each class member to assert an individual consumer protection claim in the case. If the defendant wants to have 10,000 plaintiffs parade in and say, ‘Yeah, I think brakes are important and I relied on them,’ then that’s what they’ll get.” While Bernstein’s order merely left the consumer protection claim out of the certification, Joyner had dismissed the UTPCPL claim entirely when it was before him in federal court. Joyner said it was barred by the economic loss doctrine under a 3rd Circuit decision captioned Werwinski v. Ford Motor Co. Joseph Kernen and Neal Walters of Piper Rudnick represented Kia in the case. Kernen said last week that his client is evaluating all options in light of the certification, including a possible appeal. He was unable to comment further on the case, he said. Kernen and Walters are also defending Kia in class actions brought by Sephia drivers in New Jersey and Florida. Class counsel had sought certification of a nationwide class in New Jersey Superior Court, but in 2002 a judge found there were too many conflicts among the 50 states in the rights and defenses provided in their consumer protection and warranty laws for a national class to be practicable. That case proceeded and was certified as a class of only New Jersey Sephia drivers in August 2003. The proposed Sephia class in state court in Miami is still pending. Class counsel for the Sephia drivers in the Pennsylvania, New Jersey and Florida actions include Donovan, his partner David A. Searles; Jim Francis of Francis & Mailman; and Alan Feldman of Feldman Shepherd Wohlgelernter & Tanner. The lawyers aren’t involved in a similar Sephia class action in California, where Kia Motors America is headquartered. Kia began selling the Sephia, which is manufactured in Korea, in 1996. Bernstein said the Pennsylvania class would include purchasers or lessees of Sephia model years 1995 to 2001. The brakes on Samuel-Bassett’s 2000 Sephia had to be replaced at least four times in the first 12,000 miles she drove it and more than 12 times by the time the odometer read 45,000. She demanded that Kia buy the car back from her, but the company refused, according to the opinion. Kia had argued that Samuel-Bassett’s situation did not adequately represent the interests of the class because she was involved in a minor car accident in which the brakes on her Sephia failed and she hit another car, according to the opinion. Bernstein rejected this contention. Instead of pitting her individual interests against those of the class, “this experience would likely make Ms. Bassett a more zealous advocate on behalf of the class which she seeks to represent since she has experienced the serious potential consequences of the brake design failure alleged.”

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