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Lexus pops into gear

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marasmit

Junior Member
What is the name of your state (only U.S. law)? California

We have been found at fault by our insurance company from a recent claim. The letter from them states that we are found to be 51% at fault because of failing to maintain proper control of the vehicle. Here is what actually took place. Our house sits on top of a small hill at the end of our street. My wife was driving up our driveway and the garage door was opening up. As she started to enter the garage, she hear a cracking sound so she stopped the vehicle because she knew it was toys that were left out. She put the vehicle in park, turned of the ignition and set the parking break. The vehicle was only slightly in the front of the garage. Where the vehicle was at, it was on a slight slope due to the design of the driveway. Once out of the vehicle, she went around to the front of the vehicle to see what was run over. I'm not sure what it was but that didn't really matter. as my wife was looking forward deeper into the garage to make sure there was nothing else in the way, she heard a pop and turned around the see the vehicle rolling backwards and down our driveway towards our neighbors house and our concrete wall. After coming to a stop next to a large palm tree, the tow neighbors came over to see if she was alright. They looked into the driver side and saw no one. The vehicle was no in reverse, the parking brake was still on and the vehicle was not running. Since all of this happened, our own insurance company has found her 51% at fault. How is that possible, since they never came out to take pictures of the accident scene, talk to any of the eyewitnesses or anything. We are of course appealing their decision. Since no one was driving the vehicle and later we found out that the parking brake was out of adjustment. By the way, this vehicle was taken to Lexus for all of the repairs and for your information, the parking brake is not an item that is required to be checked out maintained on any of the manufacturers scheduled maintenance programs. it is quite obvious that the insurance company was to ding my wife for this so she will get a mark on her driving record, which will of course cause our rates to go up. My wife hasn't had a ticket in over 25 years. This is not right!! any advice when we go to write our appeal letter? Any case studies that we should bring up? Help !!

Sincerely,

Mark Smith
 


justalayman

Senior Member
The vehicle was no in reverse
did you mean "now" or "not".




As an owner of a vehicle, maintenance of the vehicle is the drivers responsibility and regardless of whether there was a requirement to have the parking brake checked or not, it is still up to the driver to assure themselves that the car is in proper working order.



Who do you believe should be considered at fault for this?
 

ecmst12

Senior Member
Your rates may or may not go up but your insurance has to pay for the damage to whatever the car hit, so that is their main concern.
 

justalayman

Senior Member
Your rates may or may not go up but your insurance has to pay for the damage to whatever the car hit, so that is their main concern.
I believe his argument is that the driver has no fault for this and as such, their insurance company would not be liable for the claim. If he can prove defective engineering he has a case but I have not heard anything about unintended shift changes in Lexus or Toyota so I think it is a lost cause. Of course, if he has a couple million bucks to try to argue such a case against Lexus, he is more than welcome to try but I think the insurance surcharges would be less.
 

ecmst12

Senior Member
The insurance company doesn't "want" to ding anyone. Your wife is 51% at fault because everything that was hit was STATIONARY and so 0% at fault. The moving car is going to be at fault. Even though there was a mechanical problem, that doesn't change liability. It would be no different then if your brakes failed while you were driving and caused you to hit someone. Just because you could not have avoided an accident in the circumstances does NOT necessarily mean you won't be liable for any resulting damages.
 

justalayman

Senior Member
Even though there was a mechanical problem, that doesn't change liability
It most certainly would at least if it was determined to be defective engineering. In fact, Lexus would be liable for the damages to the car itself as well. If it was a maladjusted parking brake, then that would not be considered as defective engineering generally, at least in any relation to this situation.

The defective engineering position would take it totally out of a motor vehicle accident and into product liability. As such, if Lexus could be held liable due to defective engineering, the OP and subsequently OP's insurance would not be liable for any of the damages.

as I said, I don't think that is a realistic action to consider but hey, Ford argued they didn't have the exact same problem with their cars when it was eventually accepted they did.

Ford Transmissions Failure to Hold in Park | The Center for Autosafety

There was nearly $2 billion dollars worth of suits filed against Ford for their defective engineering. I do not know how many succeeded but at least some did.
 

justalayman

Senior Member
actually, yes, they did say it was a defect. It came out of park by itself.

and a defect in engineering can result in a mechanical failure as well.


the basis of the claim: she put the car is park. Parking pawl did not stay engaged. Car rolled down hill.

at this point, presumably the park pawl is not broken so it was a failure in the terms that placing the trans in park did not provide the designed action of causing a parking pawl within the transmission to prevent the car from rolling. i.e. engineering defect presenting itself as a designed purpose failing to act as intended. Whether there was any actual mechanical failure has not been presented and could not be without a physical inspection of the transmission.

This may or may not have been a mechanical failure as well but that cannot be determined without inspection but presumably the parking pawl is now still intact or I suspect the OP would have mentioned that fact so I would suspect it was not a mechanical failure in terms of a part broke but the system did not perform as intended therefore, it would be a defect in engineering and not a mechanical failure.

As well, engineering defect and mechanical failure are not mutually exclusive terms. In fact, many engineering defects present themselves as mechanical failures. Think of the Tacoma Narrows Bridge. The failure to properly engineer the bridge resulted in the failing of the structure. Or, without a specific situation of support but if an engineer did not make an axle strong enough for some vehicle and it broke due to that engineering. That would be defective engineering resulting in a mechanical failure. There may have been nothing actually wrong with the axle itself, it was just that it was not designed properly for the intended use. i.e. defective engineering resulting in a mechanical failure.
 

Zigner

Senior Member, Non-Attorney
Not that I *disagree* that there may have been (and probably was) a mechanical failure...the owners manual of the vehicle is VERY clear that one should not rely on the transmission and should always fully apply the parking brake. Had our OP fully applied the parking brake, as instructed by the manufacturer, this would not have occurred.

Now, the OP claims that the parking brake WAS applied. However, adjustment of the parking brake is a maintenance issue. Additionally, it is entirely possible that the driver didn't fully apply the parking brake (my wife does it all the time).
 

justalayman

Senior Member
Not that I *disagree* that there may have been (and probably was) a mechanical failure...the owners manual of the vehicle is VERY clear that one should not rely on the transmission and should always fully apply the parking brake. Had our OP fully applied the parking brake, as instructed by the manufacturer, this would not have occurred.

Now, the OP claims that the parking brake WAS applied. However, adjustment of the parking brake is a maintenance issue. Additionally, it is entirely possible that the driver didn't fully apply the parking brake (my wife does it all the time).
I do agree. In fact, most owners manuals I have read actually state to apply the parking brake anytime you are parking. We, as consumers in general, have simply ignored those directions as the parking system in the transmission has actually been quite dependable.

BUT as you may have seen in the link I provided, that did not prevent Ford from being held liable for a defective engineering situation which would have not caused any of the problems associated with it if people had simply used their parking brake as instructed.

In fact, what I find humorous about the Ford thing is their legally accepted repair, for a good portion of the vehicles, was to print and supply a sticker for the owners of the vehicles that said something like:

when parking, make sure shift lever is firmly placed in park

Somehow, I found that "repair" about as helpful as including in an owners manual the directions:

when parking, apply the parking brake firmly

the only thing it did was allow Ford a legal loophole to avoid the devastating financial liability it was facing.
 

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