Kia Class Action Certified for Pa. Car Owners
By Shannon P. Duffy U.S. Courthouse Correspondent- The Legal Intelligencer

A federal judge has certified a class action lawsuit filed on behalf of more than 10,000 Pennsylvania owners of the Sephia model of Kia cars manufactured from 1997 to 2001 that alleges the cars suffer from widespread problems in the brake systems that cause premature wear, vibration and increased stopping distance.

In his 25-page opinion in Samuel-Bassett v. Kia Motors America Inc., U.S. District Judge J. Curtis Joyner rejected defense arguments that the case was unsuitable for class treatment because the individual owners would each have to prove that their cars suffered from the alleged defect. Instead, Joyner found that there was "sufficient evidence" that Kia "had knowledge that a vast number of its Sephia automobiles between at least 1997 and 2001 required replacement of brake pads and rotors at intervals of less than 5,000 miles."

The ruling is a victory for the team of plaintiffs' lawyers who filed the suit - James A. Francis and Mark D. Mailman of Francis & Mailman; Michael Donovan and David Searles, Donovan Searles; Alan M. Feldman and Thomas More Marrone of Feldman Shepherd Wohlgelernter & Tanner; and Craig Thor Kimmel and Robert M. Silverman of Kimmel & Silverman.

For Kia's lawyers, Joseph Kernen and Neal Walters of Piper Rudnick, the ruling is a setback that comes on the heels of a victory in October when a New Jersey state court judge held that Sephia owners cannot pursue their claims in a national class action.

Plaintiffs' attorney Donovan said the New Jersey case, Little v. Kia Motors America Inc., was originally filed only on behalf of a class of New Jersey residents. The claim on behalf of a national class was added, he said, only because a similar case was filed in California, where Kia America is based, and the plaintiffs lawyers wanted to prevent Kia from settling that case for a national class.

As a result, Donovan said, the New Jersey decision by Union County Judge Edward Beglin Jr. was also a victory for the plaintiffs because it was decided on constitutional grounds and will therefore prevent any nationwide class settlement.

Beglin's ruling does not conflict with Joyner's because the New Jersey judge addressed only the threshold question of whether a national class was certifiable. He found it could not be certified because there are too many conflicts among the 50 states in the rights and defenses provided in their consumer protection and warranty laws.

Joyner's decision addresses only whether a class of Pennsylvania owners of Sephias may pursue claims for and breaches of implied and express warranties, as well as claims under the Pennsylvania Unfair Trade Practices and Consumer Protection Law, and the federal Magnuson-Moss Warranty Improvement Act.

Although he sided with the plaintiffs on all of the larger questions, Joyner said he agreed with the defense that the UTPCPL claim should be dismissed because it is barred by the economic loss doctrine. Joyner focused first on the four requirements of Rule 23(a) of the Federal Rules of Civil Procedure, which requires that a class action meet the tests for numerosity, commonality, typicality and adequacy of representation.

The numerosity requirement was easily met, Joyner found, since there are more than 10,000 Pennsylvania owners of Sephias, and the 3rd U.S. Circuit Court of Appeals has found numerosity satisfied in a case with as few as 40 class members.

Defense lawyers argued that the plaintiffs can't show commonality because Sephia owners have lodged a wide variety of brake complaints. To prove their case, the defense said, the plaintiffs would have to diagnose the defect in each car - a process that would entail an inspection, a review of the car's service history, an inquiry into the owner's driving habits, and environmental factors.
But plaintiffs lawyers argued that there was strong evidence that the cars suffer from a "uniform" defect.

Joyner found that "commonality does not require an identity of claims or facts among class members; instead the commonality requirement will be satisfied if the named plaintiffs share at least one question of fact or law with the grievances of the prospective class."

Since Rule 23(a)(2) requires only a single issue common to all members of the class, Joyner said, the requirement "is easily met and commonality is not defeated by a showing that individual facts and circumstances will have to be resolved."

Joyner found that the plaintiffs' theory of liability "is centered on a common grievance: that Kia knowingly sold one automobile model, the Sephia, with a uniformly defective braking system that affected all drivers, which Kia unsuccessfully attempted to remedy in a uniform manner."

Likewise, Joyner found that the typicality requirement was met because "typicality is not identicality and thus factual differences will not render a claim atypical if the claim arises from the same event or practice or course of conduct that gives rise to the claims of the class members, and if it is based on the same legal theory."

In their briefs, defense lawyers also challenged whether lead plaintiff Shamell Samuel-Bassett was an adequate representative, saying an inspection showed that there is nothing wrong with the brakes on her car, and that she failed to include a claim under the Pennsylvania Lemon Law which could have provided the most favorable remedy to the class. And since Samuel-Bassett was in an accident that she claims was caused by the faulty brakes, the defense said, her interests could be antagonistic to the class.

Joyner found that the defense inspection of Samuel-Bassett's car proved nothing since she also has evidence that she replaced her brake pads 12
times before she had driven 45,000 miles.

"While we do not doubt that the vehicle's brakes properly function with new pads and rotors and that the vehicle's brakes may have been fully operational when inspected by defendant's expert, the vehicle's repair history nevertheless strongly suggests that the brake pads and rotors could again wear out in an unusually short period of time," Joyner wrote. Joyner rejected the argument that Samuel-Bassett's accident would adversely affect her ability to represent the class.

"We cannot conceive of how plaintiff's collision with another vehicle due to the complete failure of her brakes would operate to pit the plaintiff's individual interests against those of the class. Rather, we find that, if anything, this experience would likely make Ms. Bassett an even more zealous advocate on behalf of the class which she seeks to represent given that she now has firsthand experience and knowledge of the consequences of brake failure," Joyner wrote.

And since Pennsylvania's Lemon Law specifically allows consumers to pursue contract and warranty claims, Joyner found that Samuel-Bassett's failure
to plead a claim under the Lemon Law "does not render her inadequate as a class representative in this case."

Turning to the requirements of Rule 23(b), Joyner found that certification was appropriate under Rule 23(b)(3).

Defense lawyers argued that certifying the class under Rule 23(b)(3) would be inappropriate because the merits of each individual car owner's complaints would have to be evaluated along with their individual driving habits and conditions.

Joyner disagreed, saying the evidence showed that "the questions common to the class clearly predominate over those which only affect certain individual owners."

There is only one model at issue in the case, Joyner noted, and all of the cars were manufactured at Kia's Korea plant. The braking system was also manufactured so that the parts are fully interchangeable from one model year to the next.

"While defendant is no doubt correct that each vehicle was driven differently by different drivers in different locations and that the vehicles manifested varying symptoms such as pulsating, grinding, vibration, and failure to stop, there is nonetheless more than sufficient indicia that a vast number of those Sephias manufactured and sold between 1995 and 2001 experienced some or all of the above symptoms and were subject to the wear-out of their brake pads and rotors before reaching the 5,000 mile mark regardless of who was driving them or where or how they were being driven," Joyner wrote.