Kyla Asbury Apr. 2, 2014, 6:40pm

HUNTINGTON, W.Va. (Legal Newsline) - A West Virginia federal judge has granted in part and denied in part Ford's motion to dismiss in a class action lawsuit filed by consumers who claimed their Ford vehicles are vulnerable to sudden unintended acceleration.

After a motion to dismiss hearing was held Feb. 6 at the Sidney L. Christie Federal Building in Huntington, Chief Judge Robert C. Chambers has issued a memorandum and opinion on Monday on the matter, granting in part and denying in part Ford's motion to dismiss.

Though he disagreed with the rest of Ford's claims, Chambers did rule for the company on one of its arguments.

Ford claimed the plaintiffs' claims for unjust enrichment should be dismissed for those individuals who bought their vehicles used because their purchase did not bestow any benefit on Ford

"As an initial matter, the court finds that, for the same reasons stated with respect to plaintiffs' warranty claims, those plaintiffs who have never experienced a sudden unintended acceleration have failed to demonstrate a plausible claim that they paid more for their vehicles than their actual worth," the opinion states.

Thus, the court found in those situations the plaintiffs' claims for unjust enrichment also fail, and the court granted Ford's motion to dismiss those claims.

Ford first argued that the entire complaint must be dismissed because the plaintiffs failed to allege any specific design or manufacturing defect in the ETC system that makes its vehicles susceptible to sudden unintended acceleration events, according to Chief Judge Robert C. Chambers' memorandum and opinion.

"Instead, Ford argues, these claims are made in a conclusory fashion and cannot survive scrutiny under Rule 12(b)(6)," the opinion states. "For instance, Ford asserts plaintiffs merely allege that a sudden unintended acceleration 'may' be caused by electro-magnetic interference without identifying any specific defect."

Ford argues that the plaintiffs' failure to identify any specific design defect with the ETC system makes their claims insufficient under Ashcroft v. Iqbal and Bell Atlantic Corp. vs. Twombly.

"Upon review of the Complaint, the court disagrees," Chambers stated in this opinion.

The court found Ford's argument misframes the plaintiffs' real claim of defect in this case, the opinion states.

"It is true that plaintiffs allege there may be a malfunction in the ETC system for a variety of reasons," Chambers states. "However, plaintiffs' claim of defect is that, when there is a malfunction, the ETC system itself is defective because it only is designed to detect a single point of failure, depriving the operator of control over the throttle and allowing the throttle to remain open and result in a sudden unintended acceleration."

The plaintiffs assert the ETC system could and should have been designed in such a way to detect multiple faults at the same time, and Ford should have added failsafes, such as a BOA system, to give control of the throttle back to the driver if a sudden unintended acceleration occurs.

"In other words, plaintiffs' assertion is that the ETC system's ability to process malfunctions is the defect, irrespective of what caused the initial malfunctions," the opinion states. "Given this specific allegation, the court finds plaintiffs have met the plausibility standard of Iqbal and Twombly."

However, the plaintiffs claim that a BOA system is one of the failsafes Ford could have installed that would allow a driver to "cancel unwanted torque commands, regardless of the origin, and limit the amount of engine torque by depressing the brake pedal, thereby permitting the brakes to slow the vehicle," the opinion states.

Even though the BOA system was originally designed to help in instances of mechanical entrapment, the plaintiffs assert it also can help if there is a sudden unintended acceleration caused by the defect in the ETC system, according to the opinion.

"Plaintiffs allege Ford knew the ETC system was defective and should have installed a failsafe, such as a BOA system, which would allow a driver to retake control of the throttle," the opinion states. "Thus, given these allegations, the court rejects Ford's argument that the complaint must be dismissed because the BOA system was not originally designed to mitigate an alleged defect with the ETC system."

Ford further argued the complaint must be dismissed because it was not required to equip its vehicles with the most advanced safety features, according to the opinion.

"Ford asserts the fact a product can be made safer does not establish the product is automatically defective if that safety feature is not added," the opinion states. "Consumers are free to choose from a variety of models and safety features when they purchase an automobile."

As a general proposition, the court agreed with Ford that it is not required to install the most advanced optional safety features on its vehicles, according to the opinion.

"Nevertheless, the plaintiffs' argument is that the defect lies with the ETC system," the opinion states. "A BOA system is but one type of failsafe that could have been installed to mitigate a sudden unintended acceleration."

The court found the issue of whether the ETC system is defective is a matter better suited for summary judgment or for a jury determination after an adequate time for discovery.

Therefore, the court found a ruling on the issue would be premature at this stage in the proceedings, and, accordingly, the court denied Ford's motion to dismiss the complaint.

The lawsuit, which alleges that purchasers of Ford, Lincoln and Mercury vehicles made from 2002 until 2010 were defective, was filed March 28, 2013, in the U.S. District Court for the Southern District of West Virginia at Huntington.

The defendant's motion to dismiss was filed June 27.

The vehicles equipped with an electronic throttle control, but no adequate fail-safe systems to prevent incidents of sudden unintended acceleration, according to the complaint.

The plaintiffs named in the case are Lance R. Belville, Donald C. Carr, Mindi Stewart, Stanley Stewart, Dean Richardson, Christine Salamone, Charles Johnson, Jill Durant, Beverly Gorton, Josh Legato, Michael Antramgarza, RoofWerks Inc., Quintin Williams, ACA Legal Investigations Inc., John McGee, Mills Allison, Davis H. Patton, Inez A. Patton, Laura Elsinger and Gabriel Kletschka.

The plaintiffs are being represented by Niall A. Paul and Nathan B. Atkinson of Spilman, Thomas & Battle PLLC; Adam J. Levitt and John E. Tangren of Grant & Eisenhoffer PA; Mark DiCello and Robert F. DiCello of the DiCello Law Firm; Guy R. Bucci, Timothy C. Bailey and Lee Javins of Bucci Bailey & Javins LC; James R. Bartimus and Stephen M. Gorny of Bartimus, Frickleton, Robertson & Gorney PC; John T. Murray of Murray & Murray Co. LPA; John Scarola and C. Calvin Warriner III of Searcy, Denney, Scarola, Barnhart & Shipley PA; Joseph J. Siprut and Aleksandra M.S. Vold of Siprut PC; Keith G. Bremer, Alison K. Hurley and Benjamin L. Price of Bremer, Whyte, Brown & O'Meara LLP; E. Powell Miller and Richard L. Merpi II of the Miller Law Firm PC; Grant L. Davis and Timothy C. Gaarder of Davis, Bethune & Jones LLC; and Edgar F. Heiskell III.

Ford is being represented by Michael Bonasso, William J. Hanna, Susan W. Romaine, Bradley J. Schmalzer and Jeffrey A. Holmstrand of Flaherty Sensabaugh Bonasso PLLC; J. Tracy Walker IV and Andrew J. Trask of McGuire Woods LLP; and Peter J. Fazio of Aaronson Rappaport Feinstein & Deutsch LLP.

U.S. District Court for the Southern District of West Virginia case number: 3:13-cv-06529

From Legal Newsline: Kyla Asbury can be reached at

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