4th Bar Lost, Warranty Denied!

[TimLee]

I’ve lost my fourth bar on my 2011 Leaf here in Orange County CA.

I opted out of the class action and was told by a supervisor at Nissan that I won’t be getting a battery replacement, because the warranty was terminated when I opted out of the suit.

Any suggestions on where I should go from here?

I would ask Nissan if they would consider letting you legally rescind your Opt Out.
The discussion on the class action mediation indicated that likely would be something included in mediation revisions of the class action settlement.
As long as you provide legal binding agreement to accept the final results of the class action Nissan should be willing to proceed with replacement.

At this point there is no settlement.
Mediation has to be completed.
Court then has to finalize.
I'm not an attorney, but if mediation settlement revisions are significant, all parties will likely have to be given notification of details on the revised settlement and opportunity to Opt Out or not.

But with you qualifying for replacement now, best bet is to rescind Opt Out now.

 

[walterbays]

I frequently opt out because I believe that the whole "class action" lawsuit benefits the class lawyers the most and the class very little. Many examples exist where the settlement is $BIGBUCKS for the lawyers and class members get a coupon for small discount on future purchase or other almost meaningless outcome.

+1

Perhaps this is a case where the result was more useful; a good object lesson that I'll have to consider in the future! (lucky for me I'm not actually involved in this one as I likely would have excluded myself for the reasons above).

No, in this case class members other than the two people who initiated the suit got absolutely nothing. There was the promise of a battery warranty identical to the one which had already been given to all owners unconditionally.

So now long after the fact, but before the class action settlement has even been approved, Nissan wishes to retroactively modify the terms of its warranty to exclude people who objected to a frivolous payout to the greedy lawyers. I can't imagine that will end well for them in court, which is where it is surely going.

 

[mwalsh]

Here's what I would do. Actually I will likely do the bit about finding out what B0133 is anyway, even though I've not lost my fourth bar yet.

1) Sending the letter demanding, in writing, that you be told why your warranty claim has been denied, and why your car is flagged with this B0133 exclusion. Ask for an explanation, again in writing, as to what exactly B0133 is. Demand a timely response.

2) If a letter is forthcoming, put it in your evidence pile. You're probably going to need it for court, should it go that far.

3) Assuming the response it what we expect it to be, or if you don't get a response at all, write another letter demanding that that B0133 be removed from your car and that your warranty claim be allowed, for the reasons I've outlined earlier in this thread:

a) The warranty letter you received made no mention of the offered warranty being the result of litigation.
b) There should be no litigation-based warranty at all yet, as the suggested settlement in the Klee case has not been certified by the court.

4) Optionally, add to the letter above that if the B0133 is NOT removed from your car, you will exercise the legal rights you retained by opting-out of the Klee litigation in the first place. Then either find an attorney to file for you in civil court or file a case in civil court/small-claims and represent yourself (particularly if you go to small-claims).

5) If you need to go to court, you will want the Judge to order the specific performance of rescinding the B0133 on your car and allowing your warranty claim, particularly in small-claims where such actions are completely within the Judge's authority. However, a claim for monetary restitution has to be a part of a small-claims suit, so you will probably have to sue for the cost of a replacement pack/installation. But, ideally, you will only want the Judge's order of specific performance or you will likely find yourself with an unwelcome 1099 form from Nissan at the end of the year. If you go to civil court, you can also ask for injunctive relief that would preclude Nissan from applying the B0133 exclusion to any vehicles.

6) Allow for mediation along the way. Give Nissan the opportunity to do the right thing up-to and including the day of your court appearance. But once you've filed in court, I would get any agreement that goes towards satisfying your demands in writing.

 

[mwalsh]

BTW, you also know that I'm of the opinion that the battery degradation is a result of poor design and materials choices (omission of ceramic coating on the electrode separator) anyway, right? So it should really be covered under the 8 year/100k warranty.

 

[surfingslovak]

BTW, you also know that I'm of the opinion that the battery degradation is a result of poor design and materials choices (omission of ceramic coating on the electrode separator) anyway, right? So it should really be covered under the 8 year/100k warranty.

I would tend to agree with you, Mike. I'm not sure how easy this argument could be made and proven, but the materials selection, and the extent of battery longevity testing before the release of the vehicle onto the market might not have been adequate. It's also possible that Nissan did all this knowingly, and took the risk deliberately, but that would look even worse, if it came up.

 

[mwalsh]

I would tend to agree with you, Mike. I'm not sure how easy this argument could be made and proven, but the materials selection, and the extent of battery longevity testing before the release of the vehicle onto the market might not have been adequate. It's also possible that Nissan did all this knowingly, and took the risk deliberately, but that would look even worse, if it came up.

Two words - subpena and discovery. Although who to subpena as a witness and what discovery to ask for... I dare say there is a smoking gun somewhere, just based on the following comments about the rush to market from "sources" subsequent to the degradation fiasco:

Former Nissan second-in-command Carlos Tavares, racing to beat the Renault Zoe to market, cut Leaf development by a year and skipped a critical battery redesign....

 

[walterbays]

...the materials selection, and the extent of battery longevity testing before the release of the vehicle onto the market might not have been adequate. It's also possible that Nissan did all this knowingly, and took the risk deliberately, but that would look even worse, if it came up.

What I don't understand is why Nissan seems so willing for all of this to become public in court proceedings, news articles, and social media, just to avoid making good on a very small number of warranty claims. I see it as positive that Nissan took a risk on a battery design, as they took a risk on building a mass market EV when nobody else was willing to do so. EV's are becoming mainstream because of shared risk among car manufacturers (Nissan, Tesla, and to a lesser extent Mitsubishi, GM, and others), early adopter customers, and governments. But now it looks like Nissan is looking for a way to shift their risk over to their customers.

 

[mwalsh]

Going to be sending this out via mail (certified/return receipt):

Nissan North America, Inc.
One Nissan Way
Franklin, TN 37067
Attn: José Muñoz, Chairman

Re: B0133 “No EV Battery Capacity Warranty” notation against 2011 Nissan LEAF, VIN # (redacted).

Dear Mr. Muñoz,

Recently I contacted my preferred Nissan dealer to find out what the disposition was on my 2011 Nissan LEAF (VIN # referenced above) with respect to the battery capacity warranty offered to all 2011/2012 model year owners via a letter from Nissan NA during the summer of 2013. I was told that my car had been flagged with the B0133 notation referenced above and that, as such, it was ineligible for the capacity warranty coverage.

Please consider this letter a respectful demand for written confirmation that this is indeed the case and an explanation of what this notation is based upon. I would also like to hear of any methodology by which it may be possible to have this notation rescinded – while I don’t need warranty relief right now, I may well do within the next few months.


Sincerely,
Michael J. Walsh

Cc: Scott Becker, senior vice president, Administration & Finance; John Spoon, vice president of Customer Quality & Chief Customer Officer

 

[mxp]

We have 2 2011 Leafs. 1 of our Leafs have 2 bars lost @ 34k miles. Our 2nd Leaf will see 2 bars lost very soon @ 35k miles.

If Nissan America denied my warranty when 4 bars are gone, I would report them here:

Investigative Unit at NBC Bay Area
http://www.nbcbayarea.com/investigations/the-team/" onclick="window.open(this.href);return false;

They have a great track record for getting multi-national companies to own up.

See example: http://www.nbcbayarea.com/investigations/series/syscos-secret-food-stored-in-unrefrigerated-sheds-across-us-and-canada/Syscos-Secret-Food-Stored-in-Unrefrigerated-Sheds-Across-US-and-Canada-227398521.html" onclick="window.open(this.href);return false;

 

[GRA]

What I don't understand is why Nissan seems so willing for all of this to become public in court proceedings, news articles, and social media, just to avoid making good on a very small number of warranty claims. I see it as positive that Nissan took a risk on a battery design, as they took a risk on building a mass market EV when nobody else was willing to do so. EV's are becoming mainstream because of shared risk among car manufacturers (Nissan, Tesla, and to a lesser extent Mitsubishi, GM, and others), early adopter customers, and governments. But now it looks like Nissan is looking for a way to shift their risk over to their customers.

None of us have understood Nissan's behavior over the batteries for the past 2 years, as they repeatedly resorted to stonewalling and hiding behind their lawyers, generating tons of negative publicity and customer anger rather than taking the obvious actions and costing them a lot less in the long run. When they announced the Lizard battery and replacement price, some of asked if they'd finally gotten a clue and would get rid of the B0133 notation before things blew up again; we specifically asked the Advisory group to tell them to fix this before it became a problem. Sadly, it appears that nothing in Nissan's behavior has changed, and they continue to believe that when in a hole, rather than stopping they'll keep digging even harder. Just pathetic - the phrase "penny wise and pound foolish" comes to mind.

 

[TomT]

+100!

None of us have understood Nissan's behavior over the batteries for the past 2 years, as they repeatedly resorted to stonewalling and hiding behind their lawyers, generating tons of negative publicity and customer anger rather than taking the obvious actions and costing them a lot less in the long run. When they announced the Lizard battery and replacement price, some of asked if they'd finally gotten a clue and would get rid of the B0133 notation before things blew up again; we specifically asked the Advisory group to tell them to fix this before it became a problem. Sadly, it appears that nothing in Nissan's behavior has changed, and they continue to believe that when in a hole, rather than stopping they'll keep digging even harder. Just pathetic - the phrase "penny wise and pound foolish" comes to mind.

 

[walterbays]

When they announced the Lizard battery and replacement price, some of asked if they'd finally gotten a clue and would get rid of the B0133 notation before things blew up again; we specifically asked the Advisory group to tell them to fix this before it became a problem. Sadly, it appears that nothing in Nissan's behavior has changed

Someone is bound to take them to court over B0133 and they can't possibly win. Worse for them, whatever it is they're trying to hide about their battery design and testing will come out in pre-trial discovery and will be made public. Maybe worst of all, some other class action attorneys sifting through the mountains of discovered information will find some otherwise insignificant little glitch that they can seize on to launch yet another lawsuit for a much larger class of owners of new cars.

It seems if Nissan persists in its B0133 madness the best they can hope for is that it will go to court as another class action rather than as individual cases. They'll have to give the warranties back just as if they did the right thing today without a lawsuit, plus they'll have to pay off another group of lawyers, several million dollars. But at least they might get a confidentiality agreement with the court records sealed.

 

[mwalsh]

It seems if Nissan persists in its B0133 madness the best they can hope for is that it will go to court as another class action rather than as individual cases. They'll have to give the warranties back just as if they did the right thing today without a lawsuit, plus they'll have to pay off another group of lawyers, several million dollars. But at least they might get a confidentiality agreement with the court records sealed.

I'm not a lawyer, nor did I sleep at a Holiday Inn recently, but I'm not sure another class action is possible, at least not when it comes to the same issue. In fact, my "usual" class-action guys didn't seem very interested when I asked them to consider representing those of us who opted out in another case, and I can say pretty much unequivocally that they generally would be. However, this was well before we got hit with B0133, so it may add another wrinkle that would make the case about something else.

In any event, if I have to, I'm fulling willing to take Nissan on Pro Se in either civil court or small-claims, most likely small-claims since the replacement battery pack/installation/fitting kit/tax/loss in vehicle resale value would (in my estimation) be right around $10k. But I'll give them every opportunity to remove the B0133 notation and honor the capacity warranty first.

 

[smkettner]

I agree with trying to opt back in. May need to apologize to Nissan and the Judge. Also need to explain you opted out for the wrong reasons and did not see the tie in of lost warranty.

Or go to small claims. Ask for a one-time new battery installed as a pretrial settlement.
Reality is Nissan probably will not show up but will appeal any settlement or efforts of collection.

 

[mwalsh]

Reality is Nissan probably will not show up but will appeal any settlement or efforts of collection.

There is no right to appeal in CA if a defendant doesn't show up to a small-claims hearing. All they can do is file a motion to vacate any judgement against them and then appeal the Judge's denial of the motion to vacate. This is one of the many ways that small-claims can sometimes be a superior place to sue than in civil court.

 

[ydnas7]

I am not a lawyer

Nissan's legal advisor's would consider the decision to opt-out of the settlement as intent to pursue private litigation.

The class action lawyers would consider that part of their package is that those who opted out can opt back in and get the warranty. Its better for their reputation, its also part of their value proposition to Nissan, the class action defined the responsibilities, so now Nissan is not responsible to those who opted out, the lines of communication are between the owner and the class action lawyers.

New class action lawyers don't see payoff because the first question raised would be, why don't you opt back in? The judge would also raise that.

Small claims, don't know, seems reasonable, very location specific.

 

[smkettner]

Reality is Nissan probably will not show up but will appeal any settlement or efforts of collection.

There is no right to appeal in CA if a defendant doesn't show up to a small-claims hearing. All they can do is file a motion to vacate any judgement against them and then appeal the Judge's denial of the motion to vacate. This is one of the many ways that small-claims can sometimes be a superior place to sue than in civil court.

That is true and still I read stories how corporate still moves the issue to superior court after a no show.
Remember the lady that sued Honda over the battery issue?

 

[maini]

OP did you willingly opt out of the Lawsuit?? Also how did you do that?? I purchased a new 2014 and I have not heard anything about this suit or given an option to Opt in or opt out?? So what is my status now?? Please do clarify..

 

[mwalsh]

OP did you willingly opt out of the Lawsuit?? Also how did you do that?? I purchased a new 2014 and I have not heard anything about this suit or given an option to Opt in or opt out?? So what is my status now?? Please do clarify..

Added capacity warranty was only applicable to 2011/2012 LEAFs. LEAFs from the 2013 model year have capacity warranty as standard.

 

[evnow]

When they announced the Lizard battery and replacement price, some of asked if they'd finally gotten a clue and would get rid of the B0133 notation before things blew up again; we specifically asked the Advisory group to tell them to fix this before it became a problem. Sadly, it appears that nothing in Nissan's behavior has changed, and they continue to believe that when in a hole, rather than stopping they'll keep digging even harder. Just pathetic - the phrase "penny wise and pound foolish" comes to mind.

Blame their lawyers. I guess they think it will cost them more ...