The Toyota Owners Left Holding the Bag

John Biello was not ready for the cruise control malfunction that sent his 2009 Tacoma careening down an exit ramp, then skidding into a rollover last June. But Tuesday, when he and his wife Diane appeared before the Commonwealth of Massachusetts Division of Insurance Board of Appeals to fight an automatic rate increase mandated by state law, Biello was fully prepared to educate the hearing officer about Unintended Acceleration problems in Toyotas.

As the great tide of cash washes from Toyota into the pockets of the U.S. government, attorneys, research institutions and some death and injury victims to settle fines and claims without an admission that the automaker’s electronic throttle control system is defective, owners like John and Diane Biello represent those left to deal with Toyota’s mistakes on their own. The Rehoboth, Massachusetts couple had no counsel, just a compelling account and a binder of public documents showing that Toyota Unintended Acceleration problems continue today and that juries and technical experts recognize what the National Highway Traffic Safety Administration has not: Toyota’s badly designed electronic architecture can cause UA.

“I knew that there had been this unintended acceleration problem. I had read about it a couple of years ago,” John Biello says. “But I thought it pretty much done. I thought the problem was fixed and I didn’t really think my vehicle was involved because I got no Unintended Acceleration recall notices.”

For many of the players, the Toyota Unintended Acceleration problem is done. NHTSA walked away from the problem in 2010. The agency pressured Toyota into floor mat and sticky accelerator pedals, collected millions in recall timeliness fines and never addressed the technical problem. 

About six weeks after the Biello crash, U.S. District Judge James Selna approved the $1.63 billion deal cut between the lawyers for Toyota and Hagens Berman, Sobol, Shapiro, and Susman Godfrey the firms representing 22.6 million consumers in the economic loss multi-district litigation. Toyota got to continue to claim that its electronics are safe; some Toyota owners – but not those of the most troubled model years – got a brake override system that works under select conditions, and the attorneys netted $227 million in fees and costs. Toyota owners who sold a vehicle during the troubles potentially made out better, with individual payments ranging from $100 to $10,000.

After losing Bookout and Schwarz v Toyota in October, Toyota is tripping over itself to settle individual civil death and injury lawsuits (see Toyota Lawsuits Wrapped?). In September 2007, Jean Bookout and her friend and passenger Barbara Schwarz were exiting Interstate Highway 69 in Oklahoma, when she lost throttle control of her 2005 Camry. When foot-braking would not stop her speeding sedan, she threw the parking brake, leaving skid marks. The Camry continued speeding down the ramp and across the road at the bottom, crashing into an embankment. Schwarz died of her injuries; Bookout spent two months recovering from her injuries. In October 2013, hours after an Oklahoma jury determined that the auto maker had acted with “reckless disregard” and awarded a $3 million verdict to the plaintiffs, but before the jury could determine punitive damages, Toyota settled the case for an undisclosed sum.  (See Toyota Electronics = Guilty In Bookout.)

One of the plaintiffs’ most persuasive witnesses was Michael Barr, the author of three textbooks on embedded software and coding, spent nearly 20 months reviewing Toyota’s source code. In his testimony, Barr described Toyota’s software as “spaghetti code” a programmer’s derisive term for badly written, badly structured code. He described many ways that Toyota violated standard protocols for programming and ignored industry standards. The result was myriad avenues for system failures, and a virtually untestable system. He specifically testified to ways in which memory corruption and task death can cause a UA event when a driver attempts to disengage the cruise control. One simulation showed that the UA event could be touched off by the driver tapping the brake, and would continue until the driver of the runaway vehicle took his foot off the brake.  (See Toyota Unintended Acceleration and the Big Bowl of “Spaghetti” Code)

Last week, The Wall Street Journal reported that Toyota was poised to pay more than a billion-dollar fine to end a four-year criminal the probe into how it disclosed drivers’ complaints of unintended acceleration. Prosecutors are looking into possible mail and wire fraud violations connected to false disclosures to the government, according to the WSJ.

Well, it’s so nice that everyone gets his cut, and the government makes it point about the dangers of lying to the Feds. It doesn’t do much for the Biellos and many other Toyota and Lexus owners.

On June 6, they were headed south on I-95 in Massachusetts at about 60 miles an hour, when John moved into the right lane to take exit 2. He flipped the cruise control to disengage it, but the truck did not slow down. Instead, the Tacoma seemed to accelerate. He applied the brakes forcefully, but it had little if any effect. Biello knew that if he moved the transmission into neutral, he might blow the engine, but at least he would retain his power steering and brakes. By now, he was off the highway. The centrifugal force was pushing the Tacoma over the curb and grass and into the entrance ramp onto I-95. He turned into his skid, narrowly missed an oncoming car. The Tacoma hit the curb, rolled a quarter turn onto the driver’s side, and skidded until hitting a guard rail, which flipped the truck upright. It came to rest on the left side of the entrance ramp. The front windshield was broken and the roof was severely dented, but the Biellos escaped serious injury.

Under the state’s Safe Driving Insurance Plan, however, Biello would not avoid a significant surcharge on his auto insurance. The state law gives drivers who don’t cause crashes or incur traffic law violations a credit to their automobile insurance premiums. But drivers who are presumed to be more than 50 percent at fault in certain types of crashes – including single-vehicle incidents – and receive an insurance claim of more than $500 – lose that credit. The Biellos saw the insurance on their truck rise from $455 to $986 dollars. And over the course of the seven years to earn those good driving points back, the total surcharge would be about $3,500.

As the Tacoma took off on John Biello, he described that realization we’ve heard from other drivers who have experienced a UA – OMG, that thing I read about – it’s happening to me! Biello immediately reported his incident to NHTSA, followed up with a phone call and offered to let the agency have first crack at his Event Data Recorder download. But the agency wasn’t interested, and the 2009 Tacoma’s EDR only stores limited post-crash data, anyway.

Tuesday, in the tiny conference room of the Somerset Public Library, where the state insurance division hearing officer entertained a parade of drivers appealing their insurance premium surcharge, the Biellos told their story. Administrative Review Officer Linda Frizado listened patiently as Biello presented the findings of Michael Barr and enumerated the cruise control malfunctions found by NASA’s Engineering Safety Center. She praised his thoroughness as she ushered the couple out.

The Biellos left, optimistic that when the insurance division renders it decision in two weeks, they’ll have the surcharge removed. The deciding factor may not be the three-inch stack of Toyota UA documents – more likely a check box on the accident report. John Biello was not cited in the crash and the official cause? Code 22: Operating Defective Equipment.

In the meantime, John Biello says:

“I advise people not to buy Toyotas. The whole thing shocked me and I don’t shock easily – that it has been going on long enough so that people have to know and it continues. But Toyota keeps it quiet and they beat people down,” he says. “They’ve gotten away with this.”

ADDENDUM:  On Tuesday, February 18, 2014 the Biello's received a Finding and Order from Commonwealth of Massachusetts Division of Insurance Board of Appeals stating the following:

"The Hearing Officer therefore finds:
(i) the appellant is not more than 50% at fault for the accident; and,
(ii) the surcharge is not in accordance with the Standards of Fault promulgated
by the Board and the provisions of the Safe Driver Insurance Plan established by
the Commissioner of Insurance.

The Board hereby orders the surcharge Vacated and orders the insurer to delete the related SDIP surcharge points from the appellant's premium."


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