Rutherford v. BMW of N. Am., LLC

• Decision Date: 07 January 2022
• Docket Number: Civil Action No.: RDB-18-3618
• Citation: 579 F.Supp.3d 737
• Parties: Kelly RUTHERFORD, et al., Plaintiffs, v. BMW OF NORTH AMERICA, LLC, Defendant.
• Court: U.S. District Court — District of Maryland

579 F.Supp.3d 737

Kelly RUTHERFORD, et al., Plaintiffs,

v.BMW OF NORTH AMERICA, LLC, Defendant.

Civil Action No.: RDB-18-3618

United States District Court, D. Maryland.

Signed January 7, 2022

John Hein, Pro Hac Vice, Nathan E. Ross, Pro Hac Vice, Hein Schneider and Bond PC, St. Louis, MO, Vlad Hirnyk, Pro Hac Vice, Sergei Lemberg, Lemberg Law LLC, Wilton, CT, for Plaintiffs John Michael Albert, Aziz Berraoui, Kathy Swann, Rita Clinton, Thomas Clinton.

Lindsey Ann Thomas, Anthony Michael Conti, Bejamin J. Campbell, Conti Fenn LLC, Baltimore, MD, for Defendant.

MEMORANDUM OPINION

Richard D. Bennett, United States District Judge

In this case, eight Plaintiffs¹ ("Plaintiffs") bring fraud and warranty-based claims against BMW of North America, LLC ("BMW NA" or "Defendant") arising from BMW's allegedly defective N63 engines. Plaintiffs’ Amended Complaint brings four causes of action: Breach of Warranty Pursuant to the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301, et seq. (Count I); Breach of Implied Warranty of Merchantability Pursuant to the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301, et seq. and Md. Code Ann., Com. Law § 2-314 (Count II); Breach of Express Warranty Pursuant to the Md. Code Ann., Com. Law § 2-313 (Count III); Unfair and Deceptive Trade Practices Md Code Ann., Com. Law, § 13-301, et seq. ("Maryland Consumer Protection Act"). (Count IV).

Plaintiffs commenced this action on November 26, 2018 after opting out of a nationwide class action, Bang v. BMW of N. Am. LLC , No. CV 15-6945, 2016 WL 7042071 (D.N.J. 2016). Since the settlement of the Bang action, scores of opt-out plaintiffs have filed lawsuits against BMW across the country.² Presently pending before this Court are BMW of North America, LLC's Motion for Summary Judgment (ECF No. 95) and Plaintiffs’ Cross-Motion for Summary Judgment (ECF No. 108). This Court has reviewed the parties’ submissions and heard the arguments of counsel at a telephonic motions hearing on January 3, 2022.³ For the reasons stated below, BMW NA's Motion for Summary Judgment (ECF No. 95) is GRANTED IN PART AND DENIED IN PART. Specifically, it is GRANTED with respect to the claims of Plaintiffs Rutherford, Inghram, Daniels, and Morgan as to all four counts, and is GRANTED as to the claims of Albert, Berraoui, Clinton, and Swan on Count IV. The Motion is DENIED with respect to the breach of warranty claims of Plaintiffs Albert, Berraoui, Clinton, and Swan asserted in Counts I, II, and III. Plaintiffs’ Cross-Motion for Summary Judgment (ECF No. 108) is DENIED.

BACKGROUND

In this case, Plaintiffs allege that BMW's N63 engines caused their BMW vehicles to consume an excessive amount of engine oil, requiring frequent replenishment of the oil, potentially damaging engine components, and posing a risk of injury. (Am. Compl. ¶¶ 157-59, ECF No. 14.) Plaintiffs allege that BMW tried to conceal the problem by issuing a series of technical service bulletins ("TSB") discussing the engine oil consumption of N63 engines but failing to acknowledge that the engine was defective.

On November 10, 2010, Plaintiff Kelly Ann Rutherford purchased a used 2009 BMW 7-series from certified BMW dealer Russel Automotive, in Baltimore, Maryland. (ECF No. 108-1 at 5.) At the time of the sale, Rutherford's vehicle was covered by the remainder of BMW's New Vehicle Limited Warranty ("NVLW"), which accompanied the original sale of the vehicle on March 10, 2009. Under the NVLW, BMW was to repair or replace components of the vehicle that were found to be defective in material or workmanship. (Id. at 5-6.) The NVLW would expire upon the vehicle's odometer reaching 50,000 miles or on March, 10, 2013, whichever occurred first. (Id. at 6.) Rutherford recalls that soon after having purchased her vehicle, the low oil light would frequently display. She and her husband made complaints to the dealership about the vehicle's consumption of oil. (Id. )

On April 2, 2011, Plaintiff Sharon Inghram purchased a certified-preowned 2010 BMW 7-series from BMW of Fairfax in Fairfax, Virginia, an authorized BMW dealer. (Id. at 7-8.) At the time of the sale, the vehicle was covered by the remainder of BMW's NVLW which accompanied the original sale of the vehicle on October 22, 2009. On July 13, 2010, BMW issued a Certified Pre-Owned Limited Warranty ("CPOW") for Inghram's vehicle. The NWLW would expire upon the vehicle's odometer reaching 50,000 miles or on October 22, 2013, whichever occurred first. (Id. ) The CPOW would expire upon the vehicle's odometer reaching 100,000 miles or on October 22, 2015, whichever occurred first. (Id. at 8.) Approximately two and a half years after purchasing her vehicle, Inghram noticed that the vehicle was consuming oil at a fast rate. She took the vehicle to Russel Automotive on or about October 13, 2013 to report that the low oil indicator would frequently display. (Id. )

On December 22, 2012, Plaintiff John Michael Albert purchased a new 2013 BMW 7-series from BMW of Alexandria in Alexandria, Virginia, an authorized BMW dealer. (Id. at 9.) At the time of the sale, Albert's vehicle was covered by BMW's NVLW. The NVLW would expire upon the vehicle's odometer reaching 50,000 miles or on December 22, 2016, whichever occurred first. (Id. ) In August 2014, at the vehicle's first oil change, Albert complained to BMW service representatives of both BMW of Alexandria and BMW of Annapolis about the vehicle's oil consumption. Each time he complained, he was told that the oil consumption level was normal for his car. (Id. )

On May 20, 2013, Plaintiff Aziz Berraoui purchased a used 2013 BMW X6-series from Russel Automotive, an authorized BMW dealership located in Baltimore, Maryland. (Id. at 10.) At the time of sale, the Berraoui's vehicle was covered by the remainder of BMW's NVLW, which accompanied the original vehicle sale on August 25, 2012. The NVLW would expire upon the vehicle's odometer reaching 50,000 miles or on August 25, 2016, whichever occurred first. (Id. ) Less than one month after the purchase of the vehicle, Berraoui noticed that the low oil light began to display. He complained to the dealership and was advised to add a quart of oil to the car. He was also advised that the rate of consumption was due to the type of engine in the car. (Id. at 10-11.)

On May 5, 2012, Plaintiff Rita Clinton purchased a new 2012 BMW 7-series from Passport BMW in Marlow Heights, Maryland, an authorized BMW dealer. (Id. at 11-12.) At the time of sale, the Clinton Vehicle was covered by BMW's NVLW. The NVLW would expire upon the vehicle's odometer reaching 50,000 miles or on May 5, 2016, whichever occurred first. Clinton noticed that the low oil light in her vehicle displayed frequently. (Id. at 12.) Six months after purchasing the vehicle, Clinton's husband took the vehicle to Passport BMW for service to address the low oil light. As the rate of oil consumption became faster, BMW service technicians reassured Clinton that the rate of consumption was normal for her vehicle, which was equipped with a high-performance engine. (Id. at 12.)

On February 29, 2012, Plaintiff Kevin Daniels purchased a used 2009 BMW 7-series from BMW of Alexandria in Alexandria, Virginia, an authorized BMW dealer. (Id. at 13.) At the time of purchase, the Daniels Vehicle was covered by the remainder of BMW's NVLW, which accompanied the original vehicle sale on May 29, 2009. The NVLW would expire upon the vehicle's odometer reaching 50,000 miles or on May 29, 2013, whichever occurred first. (Id. at 13-14.) Within months of purchasing his vehicle, Daniels observed that his low oil light would display frequently, and he would have to add oil to the engine. By February 2015, Daniels was adding two to four quarts of oil to his vehicle every month. BMW service representative explained to Daniels that it was normal for his car to consume oil in such quantities. (Id. at 14.)

On September 14, 2013, Plaintiff Loran Morgan purchased a used 2010 BMW 7-series from Mile One Tischer Auto Park in Silver Spring, Maryland, an authorized BMW dealership. (Id. at 14-15.) At the time of sale, the Morgan's vehicle was covered by the remainder of BMW's NVLW, which accompanied the original vehicle sale on December 22, 2009. On September 2, 2013, BMW issued a CPOW for Morgan's vehicle. The NVLW would expire upon the vehicle's odometer reaching 50,000 miles or on December 22, 2013, whichever occurred first. The CPOW would expire upon the vehicle's odometer reaching 100,000 miles or on December 22, 2015, whichever occurred first. (Id. ) At the early stages of ownership of the vehicle, Morgan was adding two quarts of oil to the engine approximately once every month. When he asked BMW service representatives about why his car was consuming so much engine oil, he was told that the rate of consumption was normal that type of engine. (Id. at 15.)

Finally, on October 10, 2015, Plaintiff Kathy Swann purchased a certified pre-owned BMW 2012 X5-series from I.G. Burton BMW in Milford, Delaware, an authorized BMW dealer. (Id. at 16.) At the time of sale, the vehicle was covered by the remainder of BMW's NVLW, which accompanied the original vehicle sale on August 21, 2012. Later, on September 14, 2015, BMW issued a CPOW for the vehicle. The NVLW would expire upon the vehicle's odometer reaching 50,000 miles or on August 21, 2016, whichever occurred first. The CPOW would expire upon the vehicle's odometer reaching 100,000 miles or on August 21, 2018, whichever occurred first. (Id. at 16-17.) Within months of purchasing the vehicle, Swann took it to the dealership because the low oil indicator had appeared. A service technician explained that because the engine in her vehicle was a V-8, she would be required to add oil in between oil changes and represented that it was normal for such engines to burn more oil. (Id. at 17.)

Plaintiffs claim that they did not learn of or suspect a defect in their vehicles’ engines until after they received notice of the Bang class action. See Bang v. BMW...