[jpwolfe31]

From reading the decision which is dated October 25, 2012, it looks like BMW failed to respond in the time frame required by the arbitrator and that neither BMW's second response nor my second response were considered. That’s fine, as really no new information was presented.

___________________

Decision

Submitted Date: 10/25/12
Hearing Date: 10/11/12


Question 1
Vehicle {Year, Make, Model}
2009 BMW Z4

Question 2
With respect to the consumer’s “vehicle”, I/we have made the following decision:
Reimbursement of cost to replace tires.

Reasons for Decision

Question 1
Vehicle {Year, Make, Model}
2009 BMW Z4

Question 2
Please list the vehicle problem alleged by the customer. Include both past and present problems:
BMW Style 296 Wheels Cracks.

Question 3
For the following reasons, I have determined that a {please list one of the following awards below: repair, denial, repurchase, reimbursement, repurchase/replacement}
Reimbursement
decision is a fair resolution of this dispute:

The arbitrator received position papers from both the BMW (manufacturer) and Mr. Wolfe (consumer). The arbitrator conducted the hearing with Mr. Wolfe present. Mr. Wolfe produced additional documents at the arbitration which were submitted to BMW for comment within a set period. In addition to the documentary evidence produced response, Mr. Wolfe also brought one of the alleged non-conforming tire and wheel from the vehicle to the arbitration which the arbitrator had the opportunity to inspect. No additional comments have been received from BMW regarding the documents submitted at the arbitration. Mr. Wolfe's position is that the BMW Style 296 wheels are more prone to cracking on the BMW Z4 than other types of tires that could be placed on the vehicle. In short, the tires simply cannot withstand the weight and pressure on this particular vehicle.

He introduced multiple complaints via internet sites in the U.K. from BMW owners who had experienced the same problems with their tires cracking. No documentary evidence was introduced regarding similar complaints within the United States. It was noted that BMW now covers such complaints with in the U.K. with replacement or reimbursement. Thus Mr. Wolfe argued that the same manner of replacement or repair of the tires should be adopted as a standard policy in the United States, since the same tires were used on the same vehicle found to have a defect in a neighboring country and addressed.

The central question is whether a non-conformity exists and if so whether it is covered under the applicable law. Here, California Civil Code, section 1794.3 provides that the Song-Beverly Consumer Warranty Act does not apply to any defect or nonconformity in consumer goods caused by the unauthorized or unreasonable use of the goods following sale. What the section does cover is any vehicle defect or malfunction that:

1. Is covered by the manufacturer's written new vehicle warranty and
2. Substantially impairs the use, value or safety of the vehicle to the consumer.

Again, the law does not cover vehicle problems that are caused by the unauthorized or unreasonable use of the vehicle after sale.

The vehicle is covered under Song-Beverly as it was bought new and used for primarily family and household purposes. The question now is the crack due to Mr. Wolfe’s unauthorized or unreasonable use or due a defect in the vehicle at the time of manufacture.

Mr. Wolfe denies ever having an incident/impact in the vehicle. He stated that the vehicle is mostly a weekend, errand car used by both he and his wife. He admitted that he lives in a hilly area but denies his driving in the neighborhood causing the cracks in the wheel. Mr. Wolfe states that this vehicle reimbursement should be covered under warranty, which was produced at the arbitration.

Mr. Wolfe testified that he found out about the potential for such a problem ahead of time from the internet and speaking to other owners of BMW’s and took the initiative to take the tires off every couple of months to check for cracks. He is an engineer with no technical training on vehicles but stated it was relatively simple to institute this regular routine of inspecting the tires. He never noticed any cracks preceding August 18, 2012 when he completed his maintenance of checking the wheels.

He had taken in the vehicle to the BMW dealer in Concord approximately 4 weeks (although he believed it to be less) before the cracks were noticed and although the tire pressure was noted as slightly low, the tires were rotated, pressure slightly changed and significantly no fissure/crack was noted by BMW.

He also reported a changed to the manner the vehicle tires road at speeds under 70 mph. Upon taking the vehicle into BMW Concord for inspection on August 20, 2012, BMW declined to honor the warranty because they alleged the wheels to be bent as the result of an impact or other driving incident.

The invoice for service August 20, 2012 states that both rims were found to have small cracks and the tires were starting to wear on the inside edge. It was recommended that both the rear rims be replaced. Upon BMW stated that the cracks found on the wheels were not covered under warranty.

The inspection report notes that the warranty is in effect until Octobe r 19, 2013. BMW's written position presented by Ms. Nancy McDonald is that the cracks were due to an impact which would not be covered under warranty.

As of July 24, 2012 the mileage was 17988 noted per the service order on rotating the tires and changing the pressure. When the cracks were discovered the mileage was listed at 18438, a difference of 450 miles in just over a month period. The July 24, 2012 service order makes no mention of wear on the tires. The total amount of mileage is suggestive of more drive time than was suggested by Mr. Wolfe for simple errands in the neighborhood.

Upon inspection of the tire at the arbitration, the crack was clearly visible but did not appear to be associated with any bending of the wheel and I also observed little more than light wear to the tire.

In short the crack appeared to stand alone as a non-conformity to the tire. BMW presented no evidence other than statements that the cracks was due to the driving of Mr. Wolfe.

It is the arbitrator's opinion that the average driver in such an automobile should expect to be able to drive a vehicle with relatively low mileage of 18439 after 3 years of ownership to withstand a reasonable usage on the roads and highways without the wheels cracking with manufacturer installed and proscribed wheels and tires on the vehicle. It is also my opinion that the cracking of the tires substantially impairs the use, value and safety of the vehicle to Mr. Wolfe with a multitude of scenarios that could put he and his passengers in physical jeopardy. As Mr. Wolfe has already put new tires on the vehicle and is driving the vehicle successfully with the replacement of the off-market tires, he should be reimbursed for the expense of the replacement of manufacturer tires at the amount so stated. His new vehicle warranty is still in effect until October 2013.

I considered the UK evidence as merely a factor in reimbursement since there was no evidence of recall in the U.S. or manufacturer reports as to the tires/wheels on this vehicle causing a repeated problem for consumers. I was persuaded by the actual lack of visible wear and tear on the tire itself and the relatively short period between service periods to when the crack was noted by the dealer. It is my opinion that the tire is more than likely ill-fitted to the wheel on this particular vehicle based on the evidence presented by both parties. The new vehicle warranty should cover the cost of reimbursement for the new tires under California Civil Code, section 1794.3 for the non-conformity.

I appreciate the time both parties provided to assist my review of the records and issues in the case.

Respectfully Submitted


Question 4
If awarding a repurchase or replacement:
If you have determined that the manufacturer is entitled to a deduction for reasonable use, please indicate the number of vehicle miles prior to the first repair attempt of the problem that gave rise to the nonconformity.

Please describe all collateral and incidental damages paid, incurred or to be incurred by the customer. Please explain why if any of these collateral/incidental damages are not awarded.

Reimbursement Decision

Question 1
Vehicle {Year, Make, Model}
2009 BMW Z4

Question 2
The manufacturer shall, within 30 days after the manufacturer is notified that the customer has accepted this decision, reimburse the customer:
$2364.00

Question 3
Reimbursement is being made for the following:
Replacement of BMW Style 296 wheels with comparable purchased from outside manufacturer.

_____________________

BMW was ordered to pay me for the replacement wheels and tires - $2,364 as delivered from PySpeed. Thanks Bobby!

There were a few items not quite right in the reported decision. For example, I stated the car operated fine up to 70 mph even with the cracked wheels. Also, I gave the arbitrator quite a bit of information on cracked wheels both in the US as well as the UK.

Overall, very satisfied.

PS - My wife and I still adore the car. I would like to get it out to the track, but I am too tall and do not pass the broomstick test.