That GM Loaner May Not be Safer

Last week, General Motors attempted to pour oil on its troubled waters with an offer of free loaner cars for consumers awaiting a fix for the wandering ignition defect that is linked to at least 13 deaths. But, Consumers for Auto Reliability and Safety (CARS) says that a loaner may be no safer – as long as automobile dealers are permitted to put customers in vehicles that may be under recall, but unremedied.

“We are very concerned for customers who go to GM dealers expecting a safer loaner car and that might not be what they get,” says Rosemary Shahan, CARS president.

This issue has been simmering on the Congressional back-burner since last May, after a California jury awarded $15 million to the parents of two sisters who died in an Enterprise Rent-A-Car 2004 PT Cruiser on October 7, 2004. The driver of the truck they hit testified that he could see smoke pouring from the PT Cruiser’s engine compartment just before it veered into the southbound lanes of Highway 101 in Monterey County, crashing into his 18-wheeled Freightliner tractor trailer. A month earlier, Chrysler had recalled 439,000 2001-2004 PT Cruiser and the 2005 PT Cruiser Convertible for a power steering hose that could rub against the transaxle differential cover, eventually resulting in a steering fluid leak and an underhood fire. Despite the recall notice, Enterprise had rented the PT Cruiser that crashed to three other customers before the Houcks. On the day of the crash, the PT Cruiser was the only vehicle available and Enterprise employees offered it to Raechel and Jacqueline Houck as a free upgrade.

Automobile dealers are prohibited from selling a new recalled vehicle that has not yet had the remedy implemented, but there is no such prohibition against renting or loaning out a recalled vehicle that has not had the fix, or selling a used unremedied vehicle.

The Raechel and Jacqueline Houck Safe Rental Car Act of 2013 was sponsored by Democratic Sens. Charles E. Schumer (D-NY), Barbara Boxer (D-CA), and Claire McCaskill (D-MO) and Republican Sen. Lisa Murkowski (R-AK), and supported by the car rental companies. The bill, S921, was filed in May and was unanimously passed by the Senate Committee on Commerce, Science and Transportation, but it has advanced no further. CARS is lobbying for the bill and a similar one in the California legislature. SB 686 prohibits dealers from loaning, renting, leasing or otherwise transferring ownership of recalled used vehicles to consumers. But in both cases, the auto dealers have demanded a carve-out for loaners, because, as lobbyists testified they “have no way to know” if a vehicle has been recalled.

“The dealers and the manufacturers are blocking it and can’t even get out of the Senate,” Shahan said. “They’ve testified that they don’t want to pay for the down time, because a recalled vehicle could be out for weeks. They don’t want to lose the revenue, they’d rather put their customers at risk.”

NHTSA Opens Smart Key Compliance Probe

With a 2011 rulemaking on standards governing electronic key systems still pending, the National Highway Traffic Safety Administration has opened a compliance investigation into 34 recent model-year vehicles that allow the vehicle to be turned off in a gear other than park, allow the key fob to be removed from a running vehicle with no warning to the driver, and allow vehicles to be restarted without the key fob present – all conditions that defy the letter and intent of Federal Motor Vehicle Safety Standard 114. And, incidentally, all conditions that Safety Research & Strategies informed the agency about in a 2010 meeting.

SRS obtained these documents after submitting a Freedom of Information Request for agency documents related to keyless ignition investigations.

On January 28, the agency’s Office of Vehicle Safety Compliance sent information requests to Toyota, Ford, General Motors, Nissan, Mazda, Hyundai and Kia regarding 2012 and 2013 model-year vehicles, based on tests of how their keyless ignition systems operate under different scenarios in which to determine if the Theft Protection and Rollaway Prevention Standard had been violated.

The agency said that the probe was initiated by a Ford recall (13V-475), for 23,000 Ford Focus vehicles, equipped with keyless starting systems that did not have an audible warning when the driver exited the vehicle. But actually, the compliance investigation had its origins in a routine FMVSS 114 compliance test of a 2013 Ford Focus. After discovering that the vehicle did not meet the warning aspect of the regulation, NHTSA’s Office of Vehicle Safety Compliance (OVSC) contacted Ford in March 2013. The two met to   discuss how its Intelligent Access key system worked. And OVSC asked Ford if it could use its MyCANIC tool. Used with Ford software, the MyCANIC is plugged into the OBD-II diagnostics port to read specific data channels from the vehicle’s computer, namely to access how the “Power Mode” communicated either a “Key Out” or “Key In” reading.

Over the spring, and stretching into the fall the OVSC and Ford jointly reviewed the vehicle. NHTSA asked for more information; Ford provided it. In September, Ford made the decision to recall, even though, “it was not determined that a non-compliance to FMVSS 114 Section 5.1.3 existed in these vehicles,” Ford noted in its Part 573 Notice of Defect and Noncompliance. And just in case the agency was wondering what Ford really thought of FMVSS 114, it added:

“While the applicability of this section of FMVSS 114 to keyless ignition systems is ambiguous, in the interest of Ford's consistent cooperation with the agency, Ford will conduct a notification and remedy campaign to add a  ‘key in ignition’ door chime to address the agency's question with respect to the requirements of FMVSS 114 Section 5.1.3 (Theft Prevention).”

Don’t Settle, NHTSA

Yesterday, the agency sent General Motors an extraordinary 27-page Special Order compelling the automaker to answer 107 questions about an ignition defect in the 2005-2007 Chevy Cobalt and six other models that claimed at least 13 lives and injured at least 31.

Retired NHTSA senior enforcement lawyer Alan Kam said that he’d never seen anything like it.

We are encouraged by NHTSA’s aggressive and swift action, and we are hoping and wishing and praying for actual enforcement follow-through that benefits and protects consumers, rather than merely burnishes the agency’s image.

We all know – including GM – that a big, fat fine is in their future for failing to launch a recall within five days of discovering a defect, as Marietta, Ga. attorney Lance Cooper found out. Cooper obtained internal documents during the discovery phase of a lawsuit on behalf of the family of the late Brooke Melton, showing that GM engineers discovered in 2004 that the ignition of the 2005 Cobalt could wander from the run to off or accessory position while the vehicle is underway. 

GM Folds, Where's the Fine?

On the First Day, attorney Lance Cooper called GM out on its recall of the 2005-2007 Chevy Cobalt and Pontiac G5 for an ignition switch problem that, the automaker announced, was linked to six deaths.

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Why Civil Litigation Matters to Safety: GM Edition

If you want to know why civil litigation matters to safety, take these links over to USA Today and read James Healey’s fine coverage of General Motor’s crappy, nine-years-too late 2005 Cobalt and Pontiac G5 recall, and attorney Lance Cooper’s request to the National Highway Traffic Safety Administration for a Timeliness Query investigation. (6 Killed in GM Cars with Faulty Ignition Switch; Lawsuit: GM Knew of Cobalt Ignition Problem; and Lawyer Asks Feds to Explain Recall Timing)  

After settling a lawsuit in which a 29-year-old woman died in crash caused by a defect known within GM since 2004, the automaker announced that it would recall a subset of vehicles plagued by ignition switches that wander from the run to the accessory or off position. These shifts  create an emergency situation while the vehicle is underway, disabling the airbags while cutting off the engine power, power brakes and power steering. The defect, which GM engineers discovered in 2004, before they began selling the 2005 Cobalt, was the central issue in Melton v General Motors.

Brooke Melton, 29, died in 2010 when the ignition switch in her 2005 Cobalt slipped into the accessory position as she drove along Highway 92 in Paulding County, Ga. Melton’s Cobalt skidded into another vehicle; she died of her injuries in the crash.

The incident was initially attributed to Melton simply losing control of her car on a rainy night. But the Melton family sought the counsel of attorney Lance Cooper, after facing a legal claim from the driver in the other vehicle. Cooper, a veteran of motor vehicle defect litigation, saw something that many lawyers would have overlooked and filed suit against GM.  The records he pried out of GM’s hands after 18 months of requests for production and a court order compelling the automaker to produce what it knew about the defect, revealed a long, sorry history. GM engineers had discovered the ignition switch problem during the Cobalt’s production stage, but the company sold them anyway. GM began to receive complaints about the problem almost immediately, and tried to make them go away with an October 2005 TSB covering the 2005 Cobalt and with a later TSB involving later model years of the Cobalt, the Pontiac G5, along with 2006-2007 Chevrolet HHR, the 2005-2006 Pontiac Pursuit in Canada; the 2006-2007 Pontiac Solstice; 2003-2007 Saturn Ion; and 2007 Saturn Sky. This “fix” – an ignition key cover that changed the design from a slot to a key hole – did not solve the problem.

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.”

NHTSA Proposes Side Impact Protection for Children

With just six months to go before a Final Rule is due to be published, the National Highway Traffic Safety Administration has released its proposal to add side impact testing to the child seat safety standard for children up to 40 pounds.

To the uninformed, the NPRM reads like the history of an agency moving forward expeditiously toward a test that will lead the way for global child safety standards. And it is true that the proposed sled test adds a new deformable door component. But a more complete dive into the history of side-impact crashes and protection for child shows that this innovation should have been an amendment to an existing side impact test for child safety seats. This proposal is waaaaay late, and the result of not one—but two—Congressional mandates, about a dozen years apart.

Here’s the truth: (And you can measure it by policy, by regulation, by research, by public engagement – it all comes out the same.) Protecting children in crashes has never been a priority for the agency, nor for the automakers. That’s how you get the first side-impact compliance test for child safety seats in 2014.

Nonetheless, some child seat safety experts are applauding the effort.

“I’m very excited that this is finally being implemented,” said Gary Whitman, Vice President, Research and Development at ARCCA Inc, and an expert in occupant crash safety systems who has tested hundreds of child seats and collaborated with NHTSA, the Pennsylvania chapter of the American Academy of Pediatric Child Injury Prevention, National SAFE KIDS Campaign, and the Children’s Hospital of Pennsylvania in child restraint research. “It’s long overdue and it’s a shame that it required an act of Congress.”

At the same time, Whitman and biomechanical expert Salena Zellers Schmidtke agree that the proposal has some serious deficits – it only protects children up to 40 pounds, and makes questionable assumptions about the efficacy of side air curtains for children in booster seats in a side impact crash.

Burning Questions: Why Did NHTSA Let Chrysler Slide?

Last Friday, David Shepardson of the Detroit News announced for NHTSA what many knew was coming: the 1993-2004 Grand Cherokee and 2002 - 2007 Jeep Liberty rear-impact fuel-fed fires investigation is over. No recall. The ornamental trailer hitch will stand as a symbolic gesture of a remedy.

This one has all the hallmarks of what has become an Office of Defects Investigation classic: design defect too difficult/costly to correct? Check. Bogus, untested remedy? Check. Appearance of action? Check.

You could tell that NHTSA was real proud of its work by the timing of the disclosure: 5 p.m. on a Friday before a holiday weekend. Classic public relations bury-the-news-and-hope-nobody-notices move. Release the information, and head home for the holidays. Classic and classy!

“Words cannot describe how disappointed I am in NHTSA and US DOT in general,” says Jenelle Embrey, the fiery Linden, Virginia woman who teamed up with the Center for Auto Safety to advocate for a recall on the older model Jeeps with the fuel tank aft of the rear axle design. Embrey launched her own crusade after witnessing the deaths of 18-year-old Acoye Breckenridge and the driver Heather Lee Santor in an October 2012 crash. Embrey’s dad, Harry Hamilton, managed to save one occupant of Jeep Grand Cherokee before it exploded.

Strickland Takes Express to Lobbytown

Well, we cracked open our virtual newspaper the other morning and found a bunch of non-news – winter is cold, New Jersey Governor Chris Christie’s a bully, and such. On the inside page, however, was a non-news story of particular interest: Former NHTSA Administrator David Strickland is leaving public service to re-enter public service as a lobbyist for the venerable firm of Venable LLP, which describes its business thus:

 "As the federal government’s regulatory reach expands, it is more important than ever to have a finger on the pulse of legislative and executive branch decision makers in Washington. Long recognized as one of the capitol’s leading law firms, Venable’s Washington office helps clients understand how evolving regulatory and policy issues can affect their businesses. The firm also assists clients in making their voices heard as policy is being crafted through both direct lobbying and the management of numerous issue-focused industry coalitions."

On its website, Venable boasts about helping clients clear regulatory hurdles, and successfully defending clients in product liability cases involving asbestos, tobacco, automobiles, industrial chemicals, and consumer electronics, as one of the nation’s “top defense firms.”

In hiring Strickland, Venable described him thus:

“An advocate for public safety on the roads, David has impressed the industry with his accomplishments,” said Brock R. Landry, co-chair of Venable’s Government Division. “From the Hill to the Administration, David is well respected and understands the often complex regulatory process from different points of view. He will play a key role in the ongoing growth of our Government Affairs, Automotive, and Technology practices.”

 

We think that the thing industry will be most impressed by was the pass David Strickland gave Toyota’s electronics in the Unintended Acceleration crisis. Sure, the government fined Toyota to the max. But the automaker only had to pay penalties for failing to mount timely recalls for floor mat interference and sticky accelerator pedals. NHTSA whitewashed the problems of Toyota’s electronic throttle control system. And, it was still chump change to the automaker. More importantly, it gave Toyota a federal cover in litigation against claims of an electronics defect. And, while the explosive Bookout verdict kinda blew that cover off with the conclusion of two respected experts that Toyota’s software was dangerous spaghetti code, (See Toyota Unintended Acceleration and the Big Bowl of “Spaghetti” Code) Strickland, as Robin to Former Transportation Secretary Ray LaHood’s Batman, did his part.

Toyota Lawsuits Wrapped?

Toyota is looking to close out its unintended acceleration crisis, with a speedy resolution to the remaining lawsuits out there. According to news reports, the automaker has been inspired by the Bookout verdict to settle a whole passel of UA lawsuits. Last month, for example, Toyota came to terms with Opal Gay Vance, a West Virginia woman who injured her neck and back, when her 2010 Camry suddenly accelerated, striking a trailer. The confidential settlement forestalled a trial set to begin on Jan. 21. In California, orders from judges in the U.S. District Court in Santa Ana and Los Angeles Superior Court opened the door to settlements in nearly 300 death and injury plaintiffs’ cases.

“We’re glad to see that Toyota has decided to approach this in a systematic and forthright way, and we look forward to seeing most of the pending claims settled in early 2014,” says attorney Donald Slavik of Robinson, Calcagnie, Robinson, Shapiro, Davis Inc. of Newport Beach, CA.

The race to empty the court dockets should not be confused with a conclusion to Toyota’s UA technical problems, which continue unabated. SRS took a stroll through the Vehicle Owners Questionnaire database, looking for 2013 UA complaints and found more than 300. They cover all of the classic scenarios, like this one:

"I backed my 2006 Toyota Corolla into a friend's driveway, and then put the car into drive to straighten it a bit. The car suddenly without warning shot across the street (perhaps at 45-50 mph), went over a 6" high cement retaining curbing, and across a lawn into another driveway. All the while I had my foot firmly on the brake (not the gas pedal). I swerved the wheel to avoid hitting a telephone pole, and the house. I finally got the car into neutral, and at last the brakes engaged, and I was able to stop the car avoiding a pick-up truck in the driveway and a tree. During this entire time the engine was loudly revving. Other than 3 shredded tires and 2 ruined rims, the car seems to be intact. I have contacted Toyota and hope for a successful resolution. The service manager at the dealership where this vehicle was purchased, however, said that since it is not under recall there is nothing they can do. Meanwhile I will be fearful every time I get behind the wheel, which I have yet to do!    3 new tires and 2 new rims is a small price to pay - it could have been my life! Had cars been passing by on this normally busy street, or children walking on the sidewalk on their way home from school - other lives as well could have been taken. This was a terrifying event! Judging from all of the similar stories written regarding this make, model and year, Toyota needs to do a recall to solve this problem once and for all." (ODI 10496026)

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