Miami, Florida July 21, 2004 – BMW of North America LLC was served today with a class action lawsuit for intentionally concealing information about the improper and sudden deployment of airbag systems and head protection systems (HPS) in their BMW X5 Sport Utility Vehicle (SUV) and for breach of warranty.
In previous years, BMW recalled defective airbags in their 3 series cars, but not for their X5 SUV. The lawsuit alleges that the airbags in some of the X5 models from 2001-2004 deploy on their own without impact or cause. When the bag deploys, a loud explosion and white powder cause the driver to lose control of the vehicle, creating a danger to themselves and the general public.
On April 19, 2004 Lizette (Lisa) Vale, the Plaintiff, was driving her BMW X5 when the driver’s side-impact airbag system and Head Protection System (“HPS”) improperly deployed without cause or impact. The sudden explosion of the airbag filled Vale’s vehicle with white smoke, obstructing her view and causing her to come to an abrupt stop. Fire rescue was called to the scene and her vehicle was towed to an authorized BMW North America dealership.
At the dealership, Vale was told that they “get two to three X5’s with the same problem every week” and that she needed to contact her insurance company for coverage. Vale’s insurance company advised her that the repair was not covered because it was the result of a defect and not a collision. Vale conveyed the information to the dealer and requested that the repair be covered under the vehicle’s warranty, but was refused coverage. Ms. Vale then took her X5 to another BMW authorized dealer and was also denied coverage.
After Vale’s insistence of coverage, BMW North America’s representative, Mr. Brian Babcock, sent a facsimile to Ms. Vale, offering to replace the airbag and HPS in exchange for Ms. Vale signing a confidentiality agreement and general release of liability for the improper airbag deployment. The confidentiality agreement and general release required Plaintiffs to keep the problem with the airbags and HPS a secret. It states:
“The undersigned will keep confidential the existence and terms of this General Release. The undersigned agrees not to reveal the facts leading up to, the terms or conditions of this General Release in any communication form including, but not limited to, word-of-mouth, print, broadcast or Internet.”
Vale refused to sign the document and was forced to pay $2,070 for the repair, which she paid under protest. The lawsuit claims that by forcing consumers to sign the confidentiality agreement,
BMW is intentionally concealing a public hazard and is hiding information that would be useful to members of the public in protecting themselves from injury that may result from the airbag and HPS malfunctions. This is a violation of Florida Law (Fla. Stat. § 69.081 ). “What BMW has done is shameful,” said Ervin A. Gonzalez, attorney for the plaintiffs. “This is yet another case of a large corporation putting its profits over the safety of the people”.
The class action seeks to obtain reimbursement for out of pocket expenses on behalf of all Plaintiffs, as well as voiding any pre-existing confidentially agreements, and requiring that BMW North America inspect and repair all 2001-2004 X5 model airbags. “We want to send a strong and powerful message to BMW and others,” said Gonzalez. “Corporations are expected to do the right thing. Mistakes are tolerable. Deception is not.”