NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0396-23
THURMAN HOGAN,
Plaintiff-Appellant, APPROVED FOR PUBLICATION v. AS REDACTED
December 12, 2024 VOLKSWAGEN GROUP OF APPELLATE DIVISION AMERICA, INC.,
Defendant-Respondent.
Submitted November 12, 2024—Decided December 12, 2024
Before Judges Sabatino, Gummer and Jacobs.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-0580-22.
Kimmel & Silverman, PC, attorneys for appellant (Jason Greshes and Robert M. Silverman, on the brief).
Biedermann Hoenig Semprevivo, attorneys for respondent (Steven A. Andreacchi and Lucy M. Reynoso, on the brief).
The opinion of the court was delivered by
SABATINO, P.J.A.D. The primary issue in this case concerns the interpretation of the New
Jersey Motor Vehicle Warranty Act ("the Lemon Law"), N.J.S.A. 56:12-29
to -49. The Legislature enacted the Lemon Law to advance robust public
policies that protect new car purchasers from enduring unacceptable burdens
caused by manufacturing defects. Among other things, the Lemon Law
empowers courts to award consumers who timely report such manufacturing
defects "specific remedies where the uncorrected defect substantially impairs
the use, value, or safety of the new motor vehicle." N.J.S.A. 56:12-29.
As we explain in more detail, the manufacturing defect in this case
involves a crack in a new SUV's front windshield that emerged two days after
plaintiff had acquired the car. The crack increased in size as time passed,
purportedly hindering the driver's view and creating an alleged safety hazard.
Plaintiff promptly reported the crack, a condition covered by the vehicle
manufacturer's warranty, to the manufacturer and the dealership that had sold
him the vehicle. Despite plaintiff's repeated requests to have the windshield
repaired or replaced, ten months passed before the defendant manufacturer did
so, after plaintiff filed suit. In the meantime, plaintiff contends he restricted his
use of the SUV, avoiding highways and driving it with trepidation at lower
A-0396-23 2 speeds as the crack worsened. The manufacturer refused to provide him with a
loaner vehicle.
While the windshield was in its cracked condition, plaintiff filed suit
against the manufacturer in the Law Division. He sought remedies under the
Lemon Law and other statutes. The motion court granted summary judgment to
the manufacturer, principally because by that time the manufacturer had
replaced the windshield at no cost to plaintiff.
For the reasons elaborated in the published portion of this opinion, we
reverse the summary judgment dismissal of plaintiff's Lemon Law claim.
Viewing the facts in a light most favorable to plaintiff, a jury could rationally
conclude the crack in the front windshield was a "substantial impairment" and
that the manufacturer's ten-month delay in repairing the windshield was
unreasonable, entitling plaintiff to recourse under the Lemon Law. As a non-
dispositive but relevant part of our analysis, we note that New Jersey's motor
vehicle code declares that motorists should not drive cars with "unduly
fractured" windshields. N.J.S.A. 39:3-75. The Lemon Law claim is accordingly
reinstated and the matter remanded for a jury trial.
In the unpublished portion of this opinion, we address plaintiff's other
claims, most of which also survive summary judgment.
A-0396-23 3 I.
The pertinent facts are not complicated. As noted, we consider them in a
light most favorable to plaintiff, subject to the proofs at trial. Brill v. Guardian
Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
On December 17, 2021, plaintiff Thurman Hogan purchased for $34,279
a new 2022 Volkswagen Tiguan SUV from a Volkswagen dealership.
According to Hogan, he bought the SUV intending for his wife to use it as her
personal daily vehicle. The SUV was manufactured by defendant Volkswagen
Group of America, Inc. ("Volkswagen" or "the manufacturer").
The SUV was covered by a four-year/50,000-mile manufacturer's
warranty. In pertinent part, the warranty declares it "covers any repair to correct
a defect in [the] manufacturer's material or workmanship (i.e., mechanical
defects), except wheel alignment, tire balance, and the repair or replacement of
tires."
Two days after Hogan obtained the SUV, he discovered it exhibited a
small stress fracture on the top center of its front windshield. Hogan asserts the
crack was spontaneous and not due to any impact while driving.
Shortly thereafter, on or about January 3, 2022, Hogan brought the SUV
to the dealership for repair, pointing out the windshield crack. The dealership
A-0396-23 4 did not immediately repair the windshield, stating the regional manager needed
to inspect the vehicle first.
As time went by, the crack expanded both vertically and horizontally.
According to Hogan, the crack "kept growing, running through the rearview
mirror mounting and then straight down the windshield." "[A]fter time it
reached a point where it also started extending horizontally across the
windshield in both directions. It eventually looked like an upside-down [letter]
T."
Hogan returned to the dealership for repair three more times in January
and February 2022. He was turned away each time, and his request for a loaner
vehicle was denied.
In or about March 2022, the dealership told Hogan it would replace his
windshield. Although he then left the SUV overnight for repair, the crack was
not addressed because the dealership had been informed it could not replace the
windshield with an "aftermarket" windshield and instead needed a windshield
supplied by Volkswagen.
On March 23, 2022, Hogan contacted Volkswagen directly. He informed
the manufacturer that the crack had appeared two days after he took possession
of the vehicle and that the dealership had been trying for three months to have
A-0396-23 5 someone from Volkswagen assess the issue but no one did so. He noted the
dealership had tried to order the windshield, but it was reportedly "on back
order." Hogan asked Volkswagen if it had "any ETA" (i.e., estimated time) on
when the replacement would be available. Volkswagen repeatedly told Hogan
that an ETA on the windshield was unknown. In April 2022, Hogan submitted
a request to Volkswagen to take the SUV back, but Volkswagen denied that
request.
As the crack grew even larger, extending across the driver's view and into
the passenger side, Hogan no longer felt comfortable with his wife driving the
vehicle for longer than short local trips. According to Hogan, at this point, the
crack obscured vision through the windshield due to light refracting through the
glass, causing double images. Hogan changed his route to work so that he would
no longer drive on highways. He generally limited his speed to no greater than
40 mph, due to fear that higher speeds would cause the windshield to fail
completely. In addition, Hogan began handwashing the SUV because he was
worried the car wash machinery would similarly rupture the windshield.
The SUV was inspected by Hogan's automotive expert, a certified
Automotive Service Excellence Master Technician, in September 2022. The
mileage on the vehicle odometer at that time was 12,069. At that point, the
A-0396-23 6 fracture had spread, covering most of the windshield.1
Hogan's expert found the view from inside the vehicle would be
substantially impaired when driving. 2 He noted there was no impact damage,
chips, or scratches on the failed windshield, which signified the crack was due
to a warrantable manufacturing error.
Hogan's expert opined in his report that the "market value of this vehicle
has been substantially impaired" and Volkswagen had "failed to resolve this
vehicle's verified warrantable defect in a reasonable time." He opined in his
report that "[t]his vehicle with its windshield defect would be considered to be
in 'Fair' condition," which he defined as "a vehicle that has some mechanical or
cosmetic defects and needs servicing, but is still in safe running condition."3 He
estimated "the diminution in value of this vehicle, as warranted and as
delivered[,] is equal to no less than $4,113.00[,] which is 12% of the purchase
1 The expert took photographs of the windshield and included those photos in his report. However, the quality of the photos as reproduced in the appendix is poor, and it is difficult to distinguish any details within them. In any event, given this summary judgment context, we assume for motion purposes that the observations of Hogan and his expert about the windshield's condition are accurate. 2 As noted by defendant, the expert did not perform a driving test on the vehicle. 3 As described in the expert's report, this classification refers to the windshield defect at the time of Hogan's purchase, i.e. when the defect was latent. A-0396-23 7 price."
Hogan filed his complaint against Volkswagen on October 14, 2022,
invoking the Lemon Law and the Magnuson-Moss Warranty–Federal Trade
Commission Improvement Act ("Magnuson-Moss Act"), 15 U.S.C. §§ 2301-
2312. Shortly thereafter, on October 31, 2022, Volkswagen installed a new
windshield. The repair report noted under its "description of service and parts"
section that the "inspection found [the] vehicle had [a] crack in [its] windshield
due to stress pressure" and listed the amount owed as covered under "warranty."
All told, despite Hogan's many requests to the dealership and the manufacturer,
the SUV remained in its damaged state for 320 days, a period of over ten months.
Volkswagen had the SUV inspected, post-repair, by one of its Product
Analysis Engineers in March 2023. He found the vehicle in its present condition
performed well, and the new windshield had been properly installed. Reviewing
the photos taken by Hogan's expert, the Volkswagen expert commented that part
of the crack could have been "caused by an impact with a foreign object" and
that "[t]he crack did not appear to obscure the driver's view." He described the
photo of the crack showing "that the crack was approximately half-way across
the passenger's side of the windshield and less than half-way across the driver's
side of the windshield." The engineer concluded that "[i]t is my opinion, to a
A-0396-23 8 reasonable degree of automotive engineering certainty, that there has been no
impairment of use, value or safety in this vehicle as a result of any issues
complained of by [p]laintiff."
Following Hogan's deposition and other discovery, Volkswagen moved
for summary judgment, asserting that its successful repair of the vehicle's
windshield barred recovery under both the Lemon Law and the Magnuson-Moss
Act. After hearing argument, the motion court granted the motion and dismissed
Hogan's lawsuit on September 12, 2023.
In its oral opinion, the motion court stated that in accordance with the
summary judgment standard, it assumed the windshield crack was "purely a
defect with regard to the [windshield]" and not due to impact damage. The court
described its understanding of the crack as spanning horizontally "two thirds on
either side" and vertically down the "middle to [the] lower part of the
windshield." The court noted it lacked sufficient information concerning "at
what point [] the extension of the crack ultimately impact[ed] the driver's ability
to operate the vehicle." However, the court was presented with Hogan's
contentions that the crack caused light refraction leading to double images, and
that due to safety concerns Hogan restricted his speed to 40 mph, avoided
highways, and did not take the SUV to car washes. The court also was informed
A-0396-23 9 that Hogan and his wife are "working people that need to get to work. They
have to use the vehicle."
Nevertheless, the court granted summary judgment. It remarked that "if
it was anything other than a [cracked] windshield . . . [s]ummary [j]udgment
would not be appropriate for the court to consider." The court concluded that
Hogan's "confidence in the vehicle has been fully restored" now that the
windshield was replaced. The court reasoned that a defendant manufacturer is
insulated from a Lemon Law claim once a nonconformity has been repaired.
The court stated it was "mindful of the fact that this did happen in 2021 and the
fact that it was during COVID and there were product delays." The court noted
that a common remedy for proven claims under the Lemon Law is a return of
the vehicle and a refund to the consumer, but doubted that Hogan wanted that
remedy, now that the windshield had been repaired.
The court similarly found there was no merit to Hogan's breach-of-
warranty claims under the Magnuson-Moss Act because the windshield was
successfully replaced at no cost to Hogan.
This appeal ensued. Hogan contends the motion court misapplied the
summary judgment standard and the terms of the Lemon Law and the
Magnuson-Moss Act. He argues there is ample evidence of Volkswagen's
A-0396-23 10 failure to repair a defect or condition that "substantially impaired the use, value,
or safety" of the vehicle "within a reasonable period of time." Hogan asserts the
issues of (1) whether the growing windshield crack amounted to a substantial
impairment, and (2) whether the ten-month delay in making the repair was an
unreasonable amount of time are questions for a jury to determine.
Volkswagen, meanwhile, argues the court rightly decided those questions
in its favor. Volkswagen also underscores the court's finding that Hogan's
confidence in the vehicle, post-repair, had been "fully restored."
II.
The Lemon Law provides protection to consumers purchasing new motor
vehicles. N.J.S.A. 56:12-29 to -49. The Lemon Law was enacted as a result of
manufacturing defects in motor vehicles imposing undue economic burdens on
consumers. As expressed in the statute:
[T]he purchase of a new motor vehicle is a major, high cost consumer transaction and the inability to correct defects in these vehicles creates a major hardship and an unacceptable economic burden on the consumer. It is the intent of this act to require the manufacturer of a new motor vehicle . . . to correct defects originally covered under warranty which are identified and reported within a specified period. It is the further intent of this act to provide procedures to expeditiously resolve disputes between a consumer and a manufacturer . . . when defects in a new motor vehicle are not corrected within a reasonable time, and to
A-0396-23 11 provide to award specific remedies where the uncorrected defect substantially impairs the use, value, or safety of the new motor vehicle.
[N.J.S.A. 56:12-29.]
"[T]he Act should be interpreted liberally since the expressed general
intent of the Lemon Law is to protect the new car consumer." Casal v. Hyundai
Motor Am., 436 N.J. Super. 296, 302 (App. Div. 2014).
Under the Lemon Law, the plaintiff has the burden of establishing by a
preponderance of the evidence that: (1) during the first 24 months or 24,000
miles of operation;4 (2) the subject vehicle manifested a nonconformity defined
as a "defect or condition that substantially impairs the vehicle's use, value or
safety"; and (3) the manufacturer was unable to remedy the condition in a
reasonable amount of time. N.J.S.A. 56:12-30 to -32.
If a plaintiff can establish these preconditions for relief under the Lemon
Law, the plaintiff is entitled to return the vehicle to the manufacturer and to
receive "a full refund of the purchase price . . . less a reasonable allowance for
vehicle use." N.J.S.A. 56:12-32(a) to (a)(1).5
4 These numerical requirements are indisputably met here. 5 However, in addition to that remedy of a refund, the Lemon Law also instructs that a prevailing consumer may obtain any remedies that are authorized by "any
A-0396-23 12 Frequently, questions of fact can arise in Lemon Law and warranty cases
as to whether a nonconformity existed that substantially impaired the use, value,
or safety of a vehicle and whether that defect was remedied in a reasonable
amount of time. Model Jury Charges (Civil), 4.45, "Motor Vehicle Lemon Law"
(rev. Nov. 2023) (specifying in the model verdict form that the jury must find
whether there was a substantial impairment and whether the nonconformity was
repaired within a reasonable amount of time); Gen. Motors Acceptance Corp. v.
Jankowitz, 216 N.J. Super. 313, 334 (App. Div. 1987) (finding under pre-Lemon
Law breach of warranty cases it is a question of fact as to whether a
nonconformity exists in the vehicle that substantially impairs its value).
Our Lemon Law case law applies a mixed objective and subjective
approach in evaluating whether a new vehicle's nonconformity substantially
impaired its use, value, or safety. Berrie v. Toyota Motor Sales, U.S., Inc., 267
N.J. Super. 152, 157 (App. Div. 1993). The objective component focuses on
"what a reasonable person in the buyer's position would have believed" about
the nonconformity. Ibid. The subjective component is "personalized in the
sense that the facts must be examined from the viewpoint of the buyer and his
other law." N.J.S.A. 56:12-47. In this case, the Magnuson-Moss Act qualifies as such "other law." A-0396-23 13 circumstances." Ibid. In that regard, it is relevant but not dispositive whether
the consumer's "confidence" in the vehicle has been "shaken." Ibid.; see also
Singer v. Toyota Motor Sales, U.S.A., Inc., 476 N.J. Super. 121, 132 (App. Div.
2023).
Here, the motion court did not give sufficient regard to the evidence of (1)
safety concerns, (2) usage restrictions, and (3) diminished value presented by
Hogan and his expert.
First, the growing length and width of the windshield crack, which Hogan
attested had distorted light and impeded his vision, could reasonably have been
deemed by a jury to be a substantial impairment of the vehicle's safety.
Although it is not dispositive, we note the relevance of N.J.S.A. 39:3-75, which
prohibits driving a vehicle with "unduly fractured" safety glazing material or
material that "causes undue or unsafe distortion of visibility." We recognize Hogan
continued to drive the SUV with a cracked windshield and was not ticketed for doing
so. Even so, the motor vehicle code provides an indication of a legislative safety
concern relating to windshields.6 If this case is tried by a jury, the court will have
the discretion to instruct the jurors about this statutory provision. See Hrymoc v.
6 To be clear, we do not hold that every condition of a new car that violates the motor vehicle code in Title 39 creates a per se situation of substantial impairment under the Lemon Law. A-0396-23 14 Ethicon, 467 N.J. Super. 42, 51, 69 (App. Div. 2021), modified on other grounds
254 N.J. 446 (2023).
We also point out that two reported opinions from other jurisdictions have
noted the dangers of cracked windshields. A New Mexico appellate court has held
that windshield cracks that obscure a driver's vision may constitute a safety hazard
and thereby endanger the public. State v. Munoz, 965 P.2d 349, 353 (N.M. Ct. App.
1998). Additionally, a federal district court in California has concluded in a products
liability case that "the defective [cracked] windshields in the [vehicles] create an
unreasonable safety risk that would be material to a reasonable consumer." Ehrlich
v. BMW of N. Am., LLC, 801 F. Supp. 2d 908, 918 (C.D. Cal. 2010).
Second, Hogan's use of the SUV, as described in his deposition testimony and
his affidavit opposing summary judgment, was also restricted by the windshield
crack. He contends he avoided driving on highways or over 40 mph, altering his
routes to reduce the risks of the windshield failing completely. We realize that
Hogan drove the SUV about 13,000 miles over a period of ten months before the
windshield was replaced, but that mileage figure does not necessarily signify that
Hogan reasonably received the usage of the new vehicle he had anticipated.
A-0396-23 15 Third, the report of Hogan's expert provides evidence that the SUV had a
reduced market value because of the windshield crack, at least during the ten months
the defect persisted.
The motion court improvidently overlooked or minimized these
considerations of use, value, and safety by declaring that it would have denied
summary judgment if the defect had been "anything other than a [cracked]
windshield." That categorical pronouncement of insubstantiality went too far. It
deprived Hogan of a fair opportunity to have a jury make the critical assessment of
whether the cracked windshield substantially impaired the vehicle's use, value, or
safety. On these facts a jury might have rationally reached the opposite conclusion,
after assessing the credibility of the witnesses. Or it might not have. Regardless,
the court erred in deciding the question itself.
The motion court unduly focused on the ultimate repair of the windshield in
concluding that Hogan's confidence in the vehicle had been "fully restored." But
that overlooks the interim hardship and inconvenience that Hogan asserted he and
his wife experienced in the intervening ten months while he was awaiting a repair,
which notably occurred only after he filed this lawsuit. A jury could reasonably find
credible that Hogan's confidence was shaken during that ten-month period.
A-0396-23 16 The court misstated the law in declaring that no Lemon Law claim could be
tenable so long as the defect was eventually repaired, overlooking the statute's
"reasonable time" requirement. See DiVigenze v. Chrysler Corp., 345 N.J. Super.
314, 329–30 (App. Div. 2001). A jury could rationally conclude from the totality of
circumstances that the ten-month repair delay was unreasonably long. The court
should have been more attentive to the "reasonable time" requirement of the statute.
Volkswagen's contention that a replacement windshield was on backorder due
to supply chains that were out of its control can be duly considered by a jury as it
assesses the reasonableness issue. See Singer, 476 N.J. Super. at 127. Likewise, a
jury may consider Hogan's counterargument, if supported by admissible evidence,
that Volkswagen had windshields in stock that would fit Hogan's SUV and made a
business decision to install those windshields in new vehicles instead.
In sum, the motion court erred in granting summary judgment dismissing
Hogan's Lemon Law claim. The order is vacated, and the matter is remanded for
trial on that claim.
[At the direction of the court, the published version of this opinion omits Part III, which addresses the Magnuson-Moss Act and breach of warranty claims. R. 1:36-3.]
Affirmed in part and reversed in part. We do not retain jurisdiction.
A-0396-23 17