Breach of warranty claimed in Texas class action against Toyota

Marilyn Tennissen Feb. 2, 2010, 11:11am

A Texas attorney is moving at full speed with a proposed class action against Toyota over accidents allegedly caused by stuck gas pedals, even as the automaker announced it has a remedy to put the brakes on the problem.

Representing Corpus Christi residents Sylvia and Albert Pena III and others similarly situated, attorney Robert C. Hilliard filed suit against Toyota Motor Corp. and Toyota Motor Sales USA Inc. The suit was filed Jan. 29 in the Corpus Christi Division of the Southern District of Texas.

"This is a civil action against defendants based upon information and belief that defendants, and each of them, designed, manufactured, distributed, and sold certain automobiles equipped with the Electronic Throttle Control System with Intelligence (ETCS-i) and/or Electronic Throttle Control System (ETC) that is defective in that it will allow sudden unintended acceleration of the vehicle engine," wrote Hilliard, an attorney with Hilliard Munoz Guerra LLP in Corpus Christi.

According to the complaint, the Penas purchased a 2008 Toyota Avalon from Champion Toyota in Corpus Christi which contained the ETCS-i or ETC pedal mechanism.

On Jan. 14, Albert Pena was driving the Avalon "when the vehicle unexpectedly accelerated at a stop sign, causing a collision," the suit states.

In another instance, the suit says Sylvia Pena was driving when the car allegedly accelerated as she attempted to slow down to make a turn.

The suit, and three others like it filed the same day in federal court in Louisiana, follows Toyota's recall of 2.3 million U.S. vehicles over accelerator pedals that could potentially stick.

In addition to the recall, the automaker took the unprecedented step of halting production at its manufacturing plants and banning the showroom sales of the affected models.

A few months ago the company also recalled 5.4 million cars in the United States for pedals that could get stuck under floor mats.

The pedal mechanisms are made and supplied by CST Corp. and used in Corolla, Camry, Avalon, Tundra, RAV4 and other Toyota models as well as some Lexus models.

Since November, at least 10 suits have been filed in U.S. and Canadian courts, according to Reuters. Cases seeking class-action status were previously filed in California, Florida, Louisiana and West Virginia.

On the same day the Penas filed suit, three suits with similar allegations against Toyota were filed in federal court in New Orleans.

The Texas plaintiffs claim that Toyota has been "fully aware of the recurring problem of sudden acceleration," and, according to the suit, Toyota and Lexus vehicles have been the subject of more than 2,000 complaints to the company and government agencies.

"Plaintiffs further allege on information and belief that sudden unintended accelerations in Toyota and Lexus vehicles equipped with ETCS-i and/or ETC have resulted in automobile accidents causing 16 deaths and 243 injuries," the complaint alleges.

However, the U.S. National Highway Traffic Safety Administration has said it has no proof that anyone was injured by a stuck pedal. It did confirm that five people died as a result of a gas pedal trapped in a floor mat.

A wrongful death suit was filed in Houston on Feb. 1 by a man who alleges his wife was killed when her 2009 Toyota Carolla hit a concrete highway divider.

But Hilliard's proposed Texas plaintiffs class will exclude anyone with claims of personal injury or wrongful death as an alleged result of "sudden, unintended acceleration."

Instead, the Pena's are suing for breach of implied warranty of merchantability and breach of implied warranty of fitness for a particular purpose.

According to the Pena's lawsuit, Toyota vehicles originally had both an electronic throttle control and a mechanical link between the gas pedal and the engine throttle "as a fail safe in the event of a sudden unintended acceleration."

"Beginning in or about 2001, however, Defendants designed, manufactured, distributed, and sold Toyota and Lexus automobiles equipped with ETCS-i without any redundant mechanical linkage between the gas pedal and the engine throttle control," Hilliard wrote.

On Feb. 1, Toyota announced that it had a solution to the problem. It will install a stainless steel reinforcement bar into the pedal assembly designed to keep the pedal from sticking and assure that it returns into place.

The Penas are asking that Toyota recall all vehicles equipped with ETCS-i, provide restitution of all funds improperly obtained as a result of fraudulent practices or violation of laws and a disgorgement of all profits obtained by the fraudulent acts.

In addition, the suit is seeking compensatory damages of at least $75,000 for each class representative, punitive damages as allowed under Texas law, attorneys' fees, costs and interest.

Case No. 2:10-cv-0037

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