09-50026-reg Doc 13083 Filed 02/13/15 Entered 02/13/15 14:10:10 Main Document Pg 1 of 4
KING & SPALDING LLP 1185 Avenue of the Americas New York, New York 10036 Telephone: (212) 556-2100 Facsimile: (212) 556-2222 Arthur Steinberg Scott Davidson
KIRKLAND & ELLIS LLP 300 North LaSalle Chicago, IL 60654 Telephone: (312) 862-2000 Facsimile: (312) 862-2200 Richard C. Godfrey, P.C. (admitted pro hac vice) Andrew B. Bloomer, P.C. (admitted pro hac vice)
Attorneys for General Motors LLC
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ------x In re : Chapter 11 : MOTORS LIQUIDATION COMPANY, et al., : Case No.: 09-50026 (REG) f/k/a General Motors Corp., et al. : : Debtors. : (Jointly Administered) ------x
NOTICE OF FILING OF THIRD SUPPLEMENT TO THE CHART OF PRE-CLOSING ACCIDENT LAWSUITS SET FORTH IN THE MOTION OF GENERAL MOTORS LLC PURSUANT TO 11 U.S.C. §§ 105 AND 363 TO ENFORCE THE COURT’S JULY 5, 2009 SALE ORDER AND INJUNCTION AGAINST PLAINTIFFS IN PRE-CLOSING ACCIDENT LAWSUITS
PLEASE TAKE NOTICE that on February 13, 2015, General Motors LLC filed the
attached Third Supplement to the Chart of Pre-Closing Accident Lawsuits Set Forth in the
Motion of General Motors LLC Pursuant to 11 U.S.C. §§ 105 and 363 to Enforce the Court’s
July 5, 2009 Sale Order and Injunction Against Plaintiffs in Pre-Closing Accident Lawsuits with
the United States Bankruptcy Court for the Southern District of New York.
25044509.2 09-50026-reg Doc 13083 Filed 02/13/15 Entered 02/13/15 14:10:10 Main Document Pg 2 of 4
Dated: New York, New York February 13, 2015 Respectfully submitted,
/s/ Scott I. Davidson Arthur Steinberg Scott Davidson KING & SPALDING LLP 1185 Avenue of the Americas New York, New York 10036 Telephone: (212) 556-2100 Facsimile: (212) 556-2222
Richard C. Godfrey, P.C. (admitted pro hac vice) Andrew B. Bloomer, P.C. (admitted pro hac vice) KIRKLAND & ELLIS LLP 300 North LaSalle Chicago, IL 60654 Telephone: (312) 862-2000 Facsimile: (312) 862-2200
Attorneys for General Motors LLC
2
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THIRD SUPPLEMENT1 TO CHART OF PRE-CLOSING ACCIDENT LAWSUITS COMMENCED AGAINST NEW GM NOT LISTED IN MOTION TO ENFORCE
Lead Plaintiff Name Date of Accident (Plaintiff) Vehicle Year and Model
1 Scott2 May 5, 2009 2007 Chevrolet HHR
2 Bachelder3 July 23, 2007 (Bachelder) 2006 Chevy Cobalt April 2, 2007 (Bastidas) 2006 Chevy Cobalt Black – No Date Specified4 2007 Chevy Cobalt May 25, 2007 (Champagne) 2007 Chevy Cobalt May 27, 2008 (Delp) 2006 Chevy Cobalt January 10, 2007 (Dixon) 2003 Saturn Ion March 7, 2007 (Edwards) 2002 Cadillac Deville January 4, 2009 (Fritze) 2009 Chevy Cobalt April 9, 2006 (Kitzmiller 2006 Chevy Cobalt Green)
June 7, 2003 (Hankerson) 1997 Pontiac Grand Am January 23, 2007 (Jimenez) 2006 Chevy Cobalt 2005 (Landry) 2007 Chevy Cobalt September 13, 2002 1999 Pontiac Grand Prix (Lawrimore)
February 14, 2009 (Shaffer) 2006 Pontiac Grand Prix
1 Pursuant to the Motion of General Motors LLC Pursuant to 11 U.S.C. §§ 105 and 363 to Enforce the Court’s July 5, 2009 Sale Order and Injunction Against Plaintiffs in Pre-Closing Accident Lawsuits (the “Motion to Enforce”) [Dkt. No. 12808-1], New GM reserved the right to supplement the list of Pre-Closing Accident Lawsuits set forth in the Motion to Enforce in the event additional cases were brought against New GM that implicate similar provisions of the Sale Order and Injunction. See Motion to Enforce, p. 7 n.6. 2 The Action identified in the chart above is captioned Scott v. General Motors Co., et al. pending in the United States District Court for the Middle District of Florida (Tampa Division) (the “Scott Action”). A copy of the complaint filed in the Scott Action is attached hereto as Exhibit “A.” 3 The Action identified in the chart above is captioned Bachelder, et al. v. General Motors LLC. pending in the United States District Court for the Southern District of New York (the “Bachelder Action”). A copy of the complaint filed in the Scott Action is attached hereto as Exhibit “B.” 4 The complaint in the Bachelder Action alleges that Plaintiff Benita Black was driving a 2007 Chevy Cobalt when the steering locked, resulting in a crash and injuries. The complaint, however, fails to specify the specific date or year of the alleged accident. As such, it is unclear at this time, if Plaintiff Black’s accident occurred prior to the closing of the 363 Sale or after. To the extent the accident occurred prior to the closing of the 363 Sale, any claims based thereon are subject to the Motion to Enforce.
3
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November 2, 2007 (Simecek) 2006 Chevy Cobalt March 29, 2006 (Slade) 2005 Chevy Cobalt February 25, 2007 (Stafford) 2006 Chevy Colorado August 28, 2008 (Weisjahn) 2006 Chevy HHR April 17, 2009 (Wilson) 2007 Chevy Cobalt 3 Bacon5 August 12, 2008 2004 Oldsmobile Alero
5 The Action identified in the chart above is captioned Bacon v. General Motors, LLC pending in the United States District Court for the Southern District of New York (the “Bacon Action”). A copy of the complaint filed in the Bacon Action is attached hereto as Exhibit “C.”
4
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Exhibit A
09-50026-reg Doc 13083-1 Filed 02/13/15 Entered 02/13/15 14:10:10 Exhibit A Pg 2 of 19
null / ALL Transmittal Number: 13389388 Notice of Service of Process Date Processed: 01/23/2015
Primary Contact: Rosemarie Williams General Motors LLC Mail Code 48482-038-210 400 Renaissance Center Detroit, MI 48265
Entity: General Motors LLC Entity ID Number 3113523 Entity Served: General Motors, LLC Title of Action: Scott, Cindy vs. General Motors Company; General Motors LLC Document(s) Type: Summons and Amended Complaint Nature of Action: Personal Injury Court/Agency: Hillsborough County Circuit Court, Florida Case/Reference No: 14-CA-012970 Jurisdiction Served: Florida Date Served on CSC: 01/23/2015 Answer or Appearance Due: 20 Days Originally Served On: CSC How Served: Personal Service Sender Information: Dellecker Wilson King McKenna Ruffier & SOS A. Limited Liability Partnership (Orlando, FL) 407-244-3000 Client Requested Information: Year: 2007 Make: Chevrolet Model: HHR VIN: Notes: Dellecker Wilson King McKenna Ruffier & SOS A Limited Liability Partnership 719 Vassar Street, Orlando, FL 32804-4920 CSC Location document was served: Corporation Service Company 1201 Hays St. Tallahassee, FL 32301
Information contained on this transmittal form is for record keeping, notification and forwarding the attached document(s). It does not constitute a legal opinion. The recipient is responsible for interpreting the documents and taking appropriate action.
To avoid potential delay, please do not send your response to CSC CSC is SAS70 Type II certified for its Litigation Management System. 2711 Centerville Road Wilmington, DE 19808 (888) 690-2882 | [email protected] 09-50026-reg Doc 13083-1 Filed 02/13/15 Entered 02/13/15 14:10:10 Exhibit A Pg 3 of 19 Filing # 22606593 E-Filed 01/15/2015 03:05:07 PM
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
CINDY SCOTT, Individually,'and as CASE NO: 14-CA-012970 Administrator of the Estate of Thomas Scott, Division D deceased,
Plaintiff,
-vs- Date ~~` ~~' ~5 Time MCN. No. 111 GENERAL MOTORS COMPANY, a is a certified process server in the Delaware corporation and GENERAL Circuit and County Courts MOTORS LLC, a Delaware corporation, in and for the Second Judicial Circuit
Defendants.
/
SUMMONS
THE STATE OF FLORIDA;
To Each Sheriff of the State: J YOU ARE 14EREBY COMMANDED to serve this Summons and a copy of the First Amended Complaint in this action on Defendant
, General Motors, LLC c o Corporation Service Company, Registered Agent 1201 Hays Street, Tallahassee, Florida 32301
Each Defendant is hereby required to serve written defenses to the Complaint on:
Kenneth J. McKenna Florida Bar Number 0021024 DELLECKER WILSON KING McKENNA RUFFIER & SOS A Limited Liability Partnership 719 Vassar Street Orlando, Florida 32804 (407) 244-3000 KJMeservicendwklaw.com [email protected] Attorney for Plaintiff
01/15/2015 3:05 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 1
09-50026-reg Doc 13083-1 Filed 02/13/15 Entered 02/13/15 14:10:10 Exhibit A Pg 4 of 19
within twenty (20) days after service of this Summons on that Defendant, exclusive of the date of service, and to file the original of the defenses with the Clerk of this Court either before service on Plaintiffs attorney or immediately thereafter. If a Defendant fails to do so, a default will be entered against that Defendant for the relief demanded in the Complaint.
AMERICAN DISABILITIES ACT OF 1990 Administrative Order No. 10-18
If you are a person with a disability who needs any accommodation in order to participate in this proceeding, you are entitied, at no cost to you, to the provision of certain assistance. Please contact the ADA Coordinator, Hillsborough County Courthouse, 800 E. Twiggs Street, Room 604, Tampa, Florida 33602, TELEPHONE (813) 272-7040 AT LEAST (7) SEVEN days before your scheduled court appearance, or immediately upon receiving this notification if the time before the scheduled appearance is less than 7 days; if you are hearing impaired, call 711.
DATED on this 16 day of January, 2015.
CLERK OF THE COURT
,_ ~~-~ ' - •~ ~ ra ~....r~': •`~; ~~, BY: ~~/l~l As Deputy Clerk f'~~• ~'.~~ (COURT SEAL)
01/15/2015 3:05 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 2 09-50026-reg Doc 13083-1 Filed 02/13/15 Entered 02/13/15 14:10:10 Exhibit A Pg 5 of 19 Filing # 22606593 E-Filed 01/15/2015 03:05:07 PM
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
CINDY SCOTT, as Personal Representative CASE NO: 14-CA-012970 of the Estate of THOMAS SCOTT, deceased, Division D
Plaintiff,
vs.
GENERAL MOTORS COMPANY, a Delaware corporation and GENERAL MOTORS LLC, a Delaware corporation,
Defendants. /
FIRST AMENDED COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
Plaintiff, Cindy Scott, brings this action as Personal Representative of the Estate of
Thomas Scott ("SCOTT"), against Defendants, General Motors Company and General Motors
LLC, (collectively referred to as "GM") and alleges upon information and belief:
JURISDICTION AND VENUE
This is an action for damages in excess of Fifteen Thousand Dollars ($15,000.00),
exclusive of interest and costs, brought pursuant to the Florida Wrongful Death Act, Florida
Statutes § 768.16 - .26.
2. Cindy Scott is a citizen of Florida and resides in Hillsborough County, Florida.
She is the lawfully appointed Personal Representative of the Estate of Thomas Scott.
3. General Motors, LLC is a Delaware limited liability company doing business in
all fifty states with its principal place of business in Detroit, Michigan. At all times material
hereto, pursuant to Florida Statute § 48.193, General Motors LLC is subject to personal
jurisdiction in Florida because it operates, conducts, engages in, or carries on a business or 09-50026-reg Doc 13083-1 Filed 02/13/15 Entered 02/13/15 14:10:10 Exhibit A Pg 6 of 19
First Amended Complaint for Damages and Demand for Jury Trial CASE NO: 14-CA-012970 Page 2 / business venture within this State, and/or committed a tortious act within this State, and/or caused injury to a person within this State arising out of an act or omission outside this State at a time when products, materials or things processed, serviced or manufactured by General Motors
LLC were used within this State.
4. General Motors LLC is the successor corporation of the entity formerly known as
General Motors Company which at all times material hereto was a foreign corporation doing business in all fifty states with its principal place of business in Detroit, Michigan. At all times material hereto, pursuant to Florida Statute s 48.193, General Motors Company is subject to personal jurisdiction in Florida because it operates, conduct, engages in, or carries on a business or business venture within this State, and/or committed a tortuous act within this State, and/or caused injury to a person within this State arising out of an act or omission outside this State at a time when products, materials, or things processed, serviced or manufactured by General Motors
Company were used within this State.
5. For the purposes of this claim and for the reasons alleged herein, General Motors
LLC is responsible for and has an ongoing obligation for the wrongdoing alleged in this complaint.
GENERAL ALLEGATIONS
A. Summary of Claims
6. This is an action for wrongful death, strict product liability and fraudulent
concealment. Cindy Scott brings the action individually and as Administrator of the Estate of
Thomas Scott, who was severely injured in the single vehicle crash of a 2007 Chevrolet HHR
("Chevrolet HHR") on May 5, 2009, and who died shortly thereafter. 09-50026-reg Doc 13083-1 Filed 02/13/15 Entered 02/13/15 14:10:10 Exhibit A Pg 7 of 19
First Amended Complaint for Damages and Demand for Jury Trial CASE NO: 14-CA-012970 Page 3 /
7. GM is one of the largest car and truck manufacturers in the United States. It designed and manufactured the 2007 Chevrolet HHR that is at issue in this case, along with over a million other similar cars. All of these cars contained the same safety-related defects, including, a faulty ignition switch.
8. More than eight years before SCOTT's injury and death, GM knew about the safety-related defects in the Chevrolet HHR, and did nothing to recall or fully remedy the defects or warn users about them. Rather, GM intentionally, purposely, fraudulently, and systematically concealed the defects from SCOTT, the National Highway Traffic Safety Administration
("NHTSA"), and the driving public.
9. GM's misconduct, fraudulent concealment, and systematic concealment of the safety-related defects. toll the statute of limitations that might otherwise be applicable to this action.
B. The Wreck and SCOTTS's Injury and Death
10. On May 5, 2009, SCOTT was driving the 2007 Chevrolet HHR southbound on
Florida Highway 75. SCOTT changed lanes from the outside lane to the inside lane and his vehicle uncontrollably veered to the left and entered the grass median traveling in a southeasterly direction and continued southeast across Florida Highway 75 north. The front of the vehicle then struck a tree causing the vehicle to rotate in a counterclockwise direction. SCOTT was wearing his lap/shoulder belt.
11. The known safety-related ignition defects in the 2007 Chevrolet HHR caused the vehicle's power steering to shut off, and greatly reduced Scott's braking power and function. As a result, SCOTT lost control of the Chevrolet HHR. 09-50026-reg Doc 13083-1 Filed 02/13/15 Entered 02/13/15 14:10:10 Exhibit A Pg 8 of 19
First Amended Complaint for Damages and Demand for Jury Trial CASE NO: 14-CA-012970 Page 4 ~ , 12. Only 51 years old at the time, SCOTT was flown to Bayfront Medical center for treatment of life-threatening injuries and died the afternoon of the crash.
C. GM's Knowledge of Safety-l2elated Defects in the Chevrolet IIIIIt and Its Concealment of Them
13. In 2001, during developmental testing of its 2003 Saturn Ion, GM learned that the engines in those cars were stalling due to defects in the Key System. GM chose not to fix these defects:
14. In 2002, GM began manufacturing and selling 2003 Saturn Ions with the defective Key System. It later began selling Chevrolet Cobalts with the same defective Key
System.
15. In 2004, GM engineers reported that the ignition switch on the Saturn Ion was so weak and so low on the steering column that the driver's knee could easily bump the key and turn off the car.
16. This defect was sufficiently serious for a GM engineer, in January 2004, as part of
GM's vehicle evaluation program, to affirmatively conclude, in writing, that "[t)his is a basic design flaw and should be corrected if we want repeat sales."
17. In 2004, GM began manufacturing and selling its 2005 Chevrolet Cobalt. The
Cobalt was a sister vehicle (essentially the same car with a different badge or name) of the
Saturn Ion. GM installed the same Key System on the 2005 Cobalt as it did on the Saturn Ion.
18. On October.29, 2004, around the time of GM's market launch of the 2005 Cobalt,
Gary Altman ("Altman")- GM's program-engineering manager for the Cobalt- test drove the 09-50026-reg Doc 13083-1 Filed 02/13/15 Entered 02/13/15 14:10:10 Exhibit A Pg 9 of 19
First Amended Complaint for Damages and Demand for Jury Trial CASE NO: 14-CA-012970 Page 5 /
Cobalt with the standard key and key fob. During the test drive, when Altman's knee bumped the key, the engine turned off, causing the engine to stall. Altman reported this incident to GM.
19. In response to Altman's report, GM launched an engineering inquirv to investigate the potential for the key to move from the "run" to the "accessory/off' position during ordinary driving conditions. This inquiry is known within GM as a Problem Resolution Tracking System
Inquiry ("PRTS"). The specific complaint which resulted in the PRTS was that the "the vehicle can be keyed off with knee while driving."
20. As part of the PRTS, GM engineers also began looking into ways to solve the problem of the key moving from the "run" to the "accessory/off' position during ordinary driving.
21. On February 18, 2005, GM engineers presented several possible solutions to the
Cockpit Program Integration Team ("CPIT"). GM engineers determined the only "sure solution" to fixing the problem of the key inadvertently moving from the "run" to the "accessory/off' position required changing from a low mount to a high mount lock module, which would considerably reduce the possibility of the key/key fob being impacted by a driver.
22. According to GM engineers, this change in the key position on the lock module, combined with increasing the detent in the ignition switch, would be a"sure solution." GM, however, through Altman, rejected this "sure solution," in part, because the cost to implement the solution would be too high.
23. During this PRTS, GM also considered changing the key from a slot to a hole as a way to attempt to contain this problem, but not as a solution to the problem. 09-50026-reg Doc 13083-1 Filed 02/13/15 Entered 02/13/15 14:10:10 Exhibit A Pg 10 of 19
First Amended Complaint for Damages and Demand for Jury Trial CASE NO: 14-CA-012970 Page 6 /
24. Changing the key from a slot to a hole would reduce the lever arm of the key and the key chain. With the slot design, the key chain would hang lower on the key which would increase the torque force on the ignition switch when the chain was contacted or moved in any way. GM engineers determined this key change would significantly reduce the chance of the key inadvertently moving from the "run" to the "accessory/off position during ordinary driving maneuvers.
25. A GM engineer conducted a cost analysis of this key change and determined that the cost to make this change would be less than one dollar per vehicle or around 0.57 cents per part.
26. GM, however, rejected this proposed key change and, on March 9, 2005, GM closed the PRTS without taking any steps to fix the defective Key System in Ions and Cobalts.
The PRTS detailed the reasons why GM took no action.
We are closing this PRTS with no action. The main reasons are the following: A11 possible solutions were presented to CPIT and V APIR: a. The lead-time for all the solutions is too long. b. The tooling cost and piece price are too high. c. None of the solutions seem to fully - countermeasure the possibility of the key being turned (ignition turn off) during driving. Thus none of the solutions represents an acceptable business case.
27. On February 28, 2005, GM issued a bulletin to its dealers regarding engine- stalling incidents in 2005 Cobalts and 2005 Pontiac Pursuits (the Canadian version of the Pontiac
G5).
28. The February 28, 2005, bulletin addressed the potential for drivers of these vehicles to inadvertently turn off the ignition due to low key ignition cylinder torque/effort. 09-50026-reg Doc 13083-1 Filed 02/13/15 Entered 02/13/15 14:10:10 Exhibit A Pg 11 of 19
First Amended Complaint for Damages and Demand for Jury Trial CASE NO: 14-CA-012970 Page 7 /
29. GM failed to disclose and, in fact, concealed, the February 28, 2005 bulletin- and/or the information contained therein, from vehicle owners, and sent affirmative representations to dealers that did not accurately describe the nature of the problem, the multiple design steps needed for a"sure solution" to the problem, and GM' s knowledge of it.
30. Rather than disclosing this serious safety problem that uniformly affected its vehicles, GM, instead, concealed and obscured the problems, electing to wait until customers brought their cars to a dealership after an engine-stalling incident, and offered even its own dealers only an incomplete, incorrect, and insufficient description of the defects and the manner in which to actually remedy them.
31. Pursuant to 49 C.P.R. § 573.6, which requires an automobile manufacturer to
"furnish a report to the NHTSA for each defect ... related to motor vehicle safety," GM had a duty, no later than February 2005, to disclose the safety-related defects in its vehicles.
32. Instead of complying with its legal obligations, however, GM fraudulently concealed the Key System defect from the public and continued to manufacture its vehicles with these known safety defects.
33. On July 29, 2005, Amber Marie Rose, a sixteen year old Clinton, Maryland resident, was driving a 2005 Cobalt when she drove off the road and struck a tree head-on.
Amber died as a result of the injuries she sustained in the crash.
34. GM received notice of Amber's incident in September 2005 and opened an internal investigation file pertaining to this incident shortly thereafter. 09-50026-reg Doc 13083-1 Filed 02/13/15 Entered 02/13/15 14:10:10 Exhibit A Pg 12 of 19
First Amended Complaint for Damages and Demand for Jury Trial CASE NO: 14-CA-012970 Page 8 /
35. In December 2005, shortly after it commenced its internal investigation into the incident leading to Amber's death, GM issued a Technical Service Bulletin (05-02-35-007) (the
"TSB").
36. The TSB, which GM affirmatively represented applied to 2005-2006 Chevrolet
Cobalts, 2006 Chevrolet HHRs, 2005-2006 Pontiac Pursuit, 2006 Pontiac Solstices, and 2003-
2006 Saturn Ions, provided, "Information on inadvertent Turning of Key Cylinder, Loss of
Electrical System and no DTCs."
37. In October 2006, GM updated the TSB (05-02-35-007) to include additional model year including Plaintiff's vehicle, the 2007 Chevrolet HHR. These vehicles had the same safety-related defects in the Key System as the vehicles in the original TSB.
38. Throughout this entire time period, GM was selling the Defective Vehicles to consumers for full price, and consumers were purchasing them believing that the vehicles were non-defective, but all the while GM concealing the extent and nature of the defects in the
Defective Vehicles.
39. In May 2012, GM engineers tested the torque on the ignition switches for 2005-
2009 Cobalt, 2007, 2009 Pontiac G5, 2006-2009 HHR, and 2003-2007 Ion vehicles in a junkyard. The results of these tests showed that the torque required to turn the ignition switches in most of these vehicles from the "run" to the "accessory/offl' position did not meet GM's minimum torque specification requirements. These results were reported to the members of the
Field Performance Evaluation ("FPE").
40. Indeed, the GM engineers identified several additional ways to actually fix the problem. These ideas included adding a shroud to prevent a driver's knee from contacting the 09-50026-reg Doc 13083-1 Filed 02/13/15 Entered 02/13/15 14:10:10 Exhibit A Pg 13 of 19
First Amended Complaint for Damages and Demand for Jury Trial CASE NO: 14-CA-012970 Page 9 / key, modifying the key and lock cylinder to orient the key in an upward facing orientation when in the run position, and adding a push button to the lock cylinder to prevent it from slipping out of run. GM rejected each of these ideas.
COUNT I- STRICT PRODUCT LIABILITY
41. All preceding statements and allegations of Plaintiff s Complaint are incorporated herein and realleged as if expressly set forth herein.
42. GM designed, selected, inspected, tested, manufactured, assembled, equipped, marketed, distributed and sold the Chevrolet HHR, and its components.
43. GM designed, selected, inspected, tested, manufactured, assembled, equipped, marketed, distributed and sold the ignition switch which was selected and installed in the
Chevrolet HHR.
44. The 2007 Chevrolet HHR was destroyed in the accident more than two years before the initiation of this action, but any statutes of limitation are tolled because of GM' s fraud and fraudulent concealment, and conduct equivalent to that required to impose punitive damages against GM. In the alternative, GM is estopped from raising the defenses of statute of limitations and/or bankruptcy discharge by virtue of its conduct and knowing concealment.
45. GM had a legal duty to design, inspect, test, manufacture and assemble the
Chevrolet HHR so that it would be reasonably safe, reasonably crashworthy and provide a reasonable degree of occupant safety in foreseeable collisions occurring in the highway environment of its expected use.
09-50026-reg Doc 13083-1 Filed 02/13/15 Entered 02/13/15 14:10:10 Exhibit A Pg 14 of 19
First Amended Complaint for Damages and Demand for Jury Trial CASE NO: 14-CA-012970 Page 10 /
46. Among other things, the 2005 Chevrolet HHR is not crashworthy, is defective,
and is unreasonably dangerous and unsafe for foreseeable users and occupants in each of the
following particulars:
(a) having a Key„System that is inadequately designed and constructed, and located,
which may result in the key moving from the run to accessory/off position during
normal driving maneuvers;
(b) having a faulty ignition switch that allows the Chevrolet HHR to stall or lose
engine power, and steering and/or full braking ability while driving;
(c) failing to adequately warn SCOTT, other consumers, or the public in general,
about the unsafe and defective condition and design of the vehicle known to GM,
so that individuals like SCOTT could make informed and prudent decisions
regarding traveling or riding in such vehicles.
47. At all times material hereto, the Chevrolet HHR and its component parts were
defective in design, manufacture and warning, causing the Chevrolet HHR and its component
parts to be in a dangerous and defective condition that made them unsafe for their intended use.
48. The defective and dangerous condition of the Chevrolet HHR was a direct and
proximate and legal cause of the incident which occurred on May 5, 2009, which resulted in the
death of Thomas Scott.
49. As a further and direct proximate result of the defective and dangerous condition
of the Chevrolet HHR, the Estate of Scott has incurred funeral and burial expenses and suffered
the loss of future earnings and net accumulations, including future pensions and retirement
benefits. Cindy Scott, the surviving spouse of Thomas Scott, has suffered damages including loss 09-50026-reg Doc 13083-1 Filed 02/13/15 Entered 02/13/15 14:10:10 Exhibit A Pg 15 of 19
First Amended Complaint for Damages and Demand for Jury Trial CASE NO: 14-CA-012970 Page 11 / of support and services, companionship, comfort, attention, as well as mental anguish, pain and suffering.
50. The conduct of Defendant, GM rises to a level sufficient to warrant imposition of punitive damages, which will be pled by Plaintiff at a later date following the statutorily required proffer.
WHEREFORE, Cindy Scott, as Personal Representative of the Estate of Thomas Scott demands judgment in excess of $15,000.00 against Defendants, General Motors Company and
General Motors LLC for damages, costs, and interest allowable by law, and trial by jury.
COUNT II-NEGLIGENCE- WRONGFUL DEATH
51. All preceding statements and allegations of Plaintiff's Complaint are incorporated herein and realleged as if expressly set forth herein.
52. At all times material hereto, GM owed a duty to Scott to design, inspect, test, manufacture and assemble the Chevrolet HHR so that it would be reasonably crashworthy and provide a reasonable degree of occupant safety for its expected use.
53. GM breached its duty to the Plaintiff and was negligent in designing, inspecting, testing, manufacturing, assembling, marketing, selling and providing warnings for the Chevrolet
HHR, as set out in the paragraphs above.
54. The acts or omissions of GM, as aforesaid were a direct and proximate and legal cause of the incident which occurred on Mav 5. 2009, which resulted in the death of Thomas
Scott.
55. As a further and direct proximate result of the negligence of Defendant, the Estate of Scott has incurred funeral and burial expenses and suffered the loss of future earnings and net 09-50026-reg Doc 13083-1 Filed 02/13/15 Entered 02/13/15 14:10:10 Exhibit A Pg 16 of 19
First Amended Complaint for Damages and Demand for Jury Trial CASE NO: 14-CA-012970 Page 12 / accumulations, including future pensions and retirement benefits. Cindy Scott, the surviving spouse of Thomas Scott, has suffered damages including loss of support and services, companionship, comfort, attention, as well as mental anguish, pain and suffering.
56. The conduct of Defendant, GM, rises to a level sufficient to warrant imposition of punitive damages, which will be pled by Plaintiff at a later date following the statutorily required proffer.
WHEREFORE, Cindy Scott, as Personal Representative of the Estate of Thomas Scott demands judgment in excess of $15,000.00 against Defendants, General Motors Company and
General Motors LLC for damages, costs, and interest allowable by law, and trial by jury.
COUNT III: BREACH OF IMPLIED WARRANTY
57. All preceding statements and allegations of Plaintiff's Complaint are incorporated herein and realleged as if expressly set forth herein.
58. GM breached its implied warranty of inerchantability by selling the Chevrolet
HHR when it was not fit for the ordinary purpose for which such goods are sold.
59. This breach of warranty was a direct and proximate and legal cause of the incident which occurred on May 5, 2009, which resulted in the death of Thomas Scott.
60. As a further and direct proximate result of Defendant's Breach of Warranty, the
Estate of Scott has incurred funeral and burial expenses and suffered the loss of future earnings and net accumulations, including fiiture pensions and retirement benefits. Cindy Scott, the surviving spouse of Thomas Scott, has suffered damages including loss of support and services, companionship, comfort, attention, as well as mental anguish, pain and suffering. 09-50026-reg Doc 13083-1 Filed 02/13/15 Entered 02/13/15 14:10:10 Exhibit A Pg 17 of 19
First Amended Complaint for Damages and Demand for Jury Trial CASE NO: 14-CA-012970 Page 13 /
WHEREFORE, Cindy Scott, as Personal Representative of the Estate of Thomas Scott demands judgment in excess of $15,000.00 against Defendants, General Motors Company and
General 1Vlotors LLC for damages, costs, and interest allowable by law, and trial by jury.
COUNT IV: FRAUD AND FRAUDULENT CONCEALMENT
61. All preceding statements and allegations of Plaintiff's Complaint are incorporated herein and realleged as if expressly set forth herein.
62. GM intentionally concealed material facts from SCOTT, the public, and NHTSA.
GM knew that the Chevrolet HHR and other GM vehicles were designed and manufactured with
Key System defects, but GM concealed those material facts. Although the defective GM vehicles contain safety-related defects that GM knew of, or should have known of, at the time of distribution, GM recklessly manufactured and distributed those vehicles to consumers in the
United States. Those consumers had no knowledge of the safety related defects.
63. GM had a duty to disclose the facts to SCOTT, the public who owned defective
GM cars, and NHTSA, but failed to do so.
64. GM knew that SCOTT had no knowledge of those facts and that neither Scott nor the public had an equal opportunity to discover the facts. GM was in a position of superiority over SCOTT. Indeed, SCOTT trusted G1Vl not to sell a car that was defective or that violated federal law governing motor vehicle safety. SCOTT further trusted GM to warn of defects and to recall defective vehicles timely and before they caused injury.
65. By failing to disclose these material facts, GM intended to induce Scott and the public to purchase the Chevrolet HHR and/or to continue to use and drive it. GM further 09-50026-reg Doc 13083-1 Filed 02/13/15 Entered 02/13/15 14:10:10 Exhibit A Pg 18 of 19
First Amended Complaint for Damages and Demand for Jury Trial CASE NO: 14-CA-012970 Page 14 / intended to induce NHTSA not to recall SCOTT's vehicle, as well as the other defective GM vehicles in order to reduce its eventual financial exposure.
66. SCOTT reasonably relied on GM's nondisclosure, and reasonably but unknowingly continued to use the 2007 Chevrolet HHR until the date of the wreck.
67. SCOTT would not have continued to drive the Chevrolet HHR if he learned of these defects.
68. As a direct and proximate result of GM's wrongful conduct and fraudulent concealment, the Chevrolet HHR was involved in the May 5, 2009 crash, which resulted in the death of Thomas Scott.
69. As a fiirther and direct proximate result of GM's wrongful conduct and fraudulent concealment, the Estate of Scott has incurred funeral and burial expenses and suffered the loss of future earnings and net accumulations, including future pensions and retirement benefits. Cindy
Scott, the surviving spouse of Thomas Scott, has suffered damages including loss of support and services, companionship, comfort, attention, as well as mental anguish, pain and suffering.
70. The conduct of Defendant, GM, rises to a level sufficient to warrant imposition of punitive damages, which will be pled by Plaintiff at a later date following the statutorily required proffer.
WHEREFORE, Cindy Scott, as Personal Representative of the Estate of Thomas Scott demands judgment in excess of $15,000.00 against Defendants, General Motors Company and
General Motors LLC for damages, costs, and interest allowable by law, and trial by jury.
Dated at Orlando, Florida this 15t" day of January, 2015. 09-50026-reg Doc 13083-1 Filed 02/13/15 Entered 02/13/15 14:10:10 Exhibit A Pg 19 of 19
First Amended Complaint for Damages and Demand for Jury Trial CASE NO: 14-CA-012970 Page 15
DELLECKER WILSON KING MCKENNA RUFFIER & SOS A Limited Liability Partnership
BY: /s/Kenneth J. McKenna Kenneth J. McKenna Florida Bar No. 0021024 719 Vassar Street Orlando,FL 32804-4920 (407) 244-3000 [email protected] [email protected] Attorney for Plaintiff 09-50026-reg Doc 13083-2 Filed 02/13/15 Entered 02/13/15 14:10:10 Exhibit B Pg 1 of 30
Exhibit B
09-50026-regCase 1:15-cv-00155-JMF Doc 13083-2 Filed Document 02/13/15 1 Entered Filed 01/09/15 02/13/15 Page14:10:10 1 of 29 Exhibit B Pg 2 of 30
ITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NE'W RK
JEANINE BACHELDER; CASE NO. HRYAN BASTIDAS; BENITA BLACK; DEBBIE CHAMPAGNE, INDIVIDUALLY AND AS REPRESENTATIVE OFT ESTATE OF DUSTIN CHAMPAGN DECEASED; AMANDA DELP; ASHLEY DIXON; .JURY TRIAL DEMANDED ANDRE EDWARDS; DAVID FRITZE, INDIVIDUALLY & AS REPRESENTATIVE OF THE ESTATE OF DEAN FRITZE, DECEASED AND AS REPRESENTATIVE OF THE ESTATE OF MINEVA FRITZE, DECEASED; CHASITY BUSS KITZMILLER GREEN; T ESSAMENA HANKERSON; EDUARDO JIMENEZ, JR., INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF JORDON .JIMENEZ, DECEASED; EUGENE LANDRY; GINA LA WRIMORE; LINDA SHAFFER, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF LLOYD SHAFFER, DECEASED; MAURICE SHAFFER; DAWN SIMECEK; AUSTlN LEE SLADE; THOMAS STAFFORD, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF THEODORE STAFFORD, DECEASED JUDD WEISJAHN, INDIVIDUALLY ANO AS REPRESENTATIVE OF THE ESTATE OF RACHAEL WEIS.JAHN, DECEASED; and CORINNA WILSON vs.
EN ERAL MOTORS LLC 09-50026-regCase 1:15-cv-00155-JMF Doc 13083-2 Filed Document 02/13/15 1 Entered Filed 01/09/15 02/13/15 Page14:10:10 2 of 29 Exhibit B Pg 3 of 30
Plaintiffs, JEANINE BACHELDER; BRYAN BASTIDAS; BENITA BLACK; DUSTIN
CHAMPAGNE; AMANDA DELP; ASHLEY DIXON; ANDRE EDWARDS; DAVID FRITZE,
INDIVIDUALLY & AS REPRESENTATIVE OF THE ESTATE OF DEAN FRITZE,
DECEASED AND AS REPRESENTATIVE OF THE ESTATE OF MINEVA FRITZE,
DECEASED; CHASITY BLISS KITZMILLER GREEN; TESSAMENA HANKERSON;
EDUARDO JIMENEZ, JR., INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE
OF JORDON JIMENEZ, DECEASED; EUGENE LANDRY; GINA LA WRIMORE; LINDA
SHAFFER, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF LLOYD
SHAFFER, DECEASED; MAURICE SHAFFER; DAWN SIMECEK; AUSTIN LEE SLADE;
THOMAS STAFFORD, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF
THEODORE STAFFORD, DECEASED; JUDD WEISJAHN, INDIVIDUALLY AND AS
REPRESENTATIVE OF THE ESTATE OF RACHAEL WEISJAt-IN, DECEASED; and
CORlNNA WILSON (collectively referred to as "Plaintiffs" and individually referred to by the
Plaintiff's last name), bring this action against GENERAL MOTORS LLC; and/or its related subsidiaries, successors, or affiliates ("GM").
INTRODUCTION
1. This case involves tragic and wrongful deaths as well as serious and permanent personal injuries that were suffered by Plaintiffs as the result of an egregious and unprecedented failure to disclose and actively conceal a known defect in GM vehicles.
2. An auto manufacturer should never make profits more important than safety and should never conceal defects that exist in its vehicles from consumers or the public. GM' s Vehicle
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Safety Chief: Jeff Boyer has stated that: "Nothing is more important than the safety of our
customers in the vehicles they drive." Yet GM failed to live up to this commitment.
3. The first priority of a car manufacturer should be to ensure that its vehicles are safe,
and particularly that its vehicles have operable ignition systems, airbags, power-steering, power
brakes, and other safety features that can prevent or minimize the threat of death or serious bodily
harm in a collision. In addition, a car manufacturer must take all reasonable steps to ensure that,
once a vehicle is running, it operates safely and its critical safety systems (such as engine control,
braking, and airbag systems) work properly until such time as the driver shuts the vehicle down.
4. Moreover, a manufacturer that is aware of dangerous design defects that cause its
vehicles to shut down during operation, or the vehicles' airbags not to deploy, must promptly
disclose and remedy such defects.
BACKGROUND
5. Since at least 2003, GM has sold millions of vehicles throughout the United States
and worldwide that have a safety defect in which the vehicle's ignition switch can inadvertently
move from the "run" position to the "accessory" or "off' position during ordinary driving
conditions, resulting in a loss of power, vehicle speed control, and braking, as well as a failure of
the vehicle's airbags to deploy.
6. There are at least two main reasons why the GM ignition switch systems are
defective. The first is that the ignition switch is simply weak and therefore does not hold the key
in place in the "run" position. On information and belief: the ignition switch weakness is due to a
defective part known as a "detent plunger."
7. The second reason that the ignition switch systems are defective is due to the low position of the switches in the GM vehicles referenced below. That causes the keys, and the fobs
3 09-50026-regCase 1:15-cv-00155-JMF Doc 13083-2 Filed Document 02/13/15 1 Entered Filed 01/09/15 02/13/15 Page14:10:10 4 of 29 Exhibit B Pg 5 of 30
that hang off the keys, to hang so low in the GM vehicles that the drivers' knees can easily bump
them and inadvertently shut down the vehicle.
8. As used in this complaint, the "Defective Vehicles" refers to the GM vehicles sold
in the United States that have defective ignition switches, defective power steering; defective
airbags, defective seatbelts, and/or defective powertrains, including the following makes and
model years:
@ 2005 Chevrolet Cobalt • 2006 Chevrolet Cobalt
@ 2007 Chevrolet Cobalt • 2009 Chevrolet Cobalt e 2007 Chevrolet Silverado • 2007 Chevrolet Trailblazer
@ 2006 Chevrolet HHR • 2003 Saturn Ion • 2002 Cadillac Deville • 1997 Pontiac Grand Am • 1999 Pontiac Grand Prix • 2006 Pontiac Grand Prix
9. Because of defects in their design, manufacture, and/or assembly, the ignition
switch installed in the Defective Vehicles are, by their nature, loose and improperly positioned and
are susceptible to failure during normal and expected conditions. The ignition module is located
in a position in the vehicle that allows a driver to contact the key ring, and inadvertently switch the ignition position.
10. Because of its faulty design and improper positioning, the ignition switch can unexpectedly and suddenly move from the "on" or "run" position while the vehicle is in operation to the "off" or "accessory" position (the "[gnition Switch Defect"), which can occur at any time during normal and proper operation of the Defective Vehicles, meaning the ignition can suddenly switch off while it is moving at 65 mph on the freeway, leaving the driver unable to control the vehicle.
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11. GM installed these defective ignition switch systems in models from at least 2003 through at least 2011. GM promised that these vehicles would operate safely and reliably. This promise turned out to be false in several material respects. In reality, GM concealed and did not fix a serious quality and safety problem plaguing its vehicles.
12. More importantly, the Ignition Switch Defect in GM's vehicles could have been easily avoided. From at least 2005 to the present, GM received reports of crashes and injuries that put GM on notice of the serious safety issues presented by its ignition switch system.
13. GM has acknowledged that the Ignition Switch Defect has caused at least thirteen deaths. GM has refused, however, to disclose the identities of those it counts among these thirteen deaths. Independent safety regulators have recorded 303 deaths associated with only the Saturn
Ion and Chevrolet Cobalt Defective Vehicle models due to the Ignition Switch Defect. The actual number of deaths for all Defective Vehicle models is expected to be much higher.
14. Despite the dangerous nature of this defect and its effects on critical safety systems,
GM concealed its existence and did not disclose to consumers that its vehicles - which GM for years had advertised as "safe" and "reliable" - were in fact neither safe nor reliable.
15. GM has now also acknowledged further defective ignition switches, defect air bags, defective power steering, defective seatbelts as well as defective powertrains in one or more of these vehicles.
16. These cases arise from the tragic deaths of Dustin Champagne; Dean Fritze; Mineva
Fritze; Jordon Jimenez; Lloyd Shaffer and Rachael Weisjahn; and the serious and permanent personal injuries of Jeanine Bachelder; Bryan Bastidas; Benita Black; Amanda Delp; Ashley
Dixon; Andre Edwards; Chasity Bliss Kitzmiller Green; Tessamena Hankerson; Eugene Landry;
Gina Lawrimore; Maurice Shaffer; Dawn Simecek; Austin Lee Slade and Corinna Wilson, as a
5 09-50026-regCase 1:15-cv-00155-JMF Doc 13083-2 Filed Document 02/13/15 1 Entered Filed 01/09/15 02/13/15 Page14:10:10 6 of 29 Exhibit B Pg 7 of 30 result of GM's breach of its obligations and duties, including GM's failure to disclose that, as a result of the Defects, at least 10 million or more GM vehicles (and almost certainly more, including the vehicles complained of herein) may have or did have the propensity to shut down during normal driving conditions creating an extreme and unreasonable risk of accident, serious bodily harm, and death.
17. Many of the Defective Vehicles were originally designed, manufactured, marketed, and placed into the stream of commerce by GM's predecessor. GM's predecessor, General Motors
Corporation (referred to as "Old GM") also violated these obligations and duties by designing and marketing vehicles with defective ignition switch systems, and then by failing to disclose that defect even after it became aware that the ignition switch defect was causing fatal accidents. In addition to the liability arising out of the statutory obligations assumed by GM, GM also has successor liability for the deceptive and unfair acts and omissions of Old GM because GM has continued the business enterprise of Old GM with full knowledge of the Ignition Switch Defects.
18. GM's predecessor, Old GM filed for bankruptcy in 2009. In July 2009, the bankruptcy court approved the sale of GM's predecessor to GM. Notwithstanding the prior bankruptcy or contractual obligations under the sale agreement, GM is liable for its own conduct.
From its inception in 2009 and while extolling the safety and reliability of its vehicles, GM had its own independent knowledge of the defects in its vehicles, yet chose to conceal them.
19. Specifically, GM has actual knowledge that, because of the way in which the ignition was designed and integrated into the Defective Vehicles, the ignition switch can suddenly fail during normal operation, cutting off engine power and certain electrical systems in the cars, which, in turn, disables key vehicle components, safety features (like airbags), or other vehicle functions, leaving occupants vulnerable to crashes, serious injuries, and death.
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20. Although GM had, and has had, actual knowledge of safety defects in the Defective
Vehicles for years, they fraudulently concealed and continue to fraudulently conceal material facts regarding the extent and nature of safety defects in the Defective Vehicles and what must be done to remedy the defects.
21. GM has not only fraudulently concealed material facts relating to the safety defects in the Defective Vehicles for years, but it has also made affirmative fraudulent and misleading statements, and it is continuing to make fraudulent and misleading statements to the public and to
Plaintiffs regarding the nature and extent of the safety defects in the Defective Vehicles.
22. Under the Transportation Recall Enhancement, Accountability and Documentation
Act ("TREAD Act"), 1 and its accompanying regulations, when a manufacturer learns that a vehicle contains a safety defect, the manufacturer must promptly disclose the defect. 2 If it is determined that the vehicle is defective, the manufacturer must notify vehicle owners, purchasers, and dealers of the defect and must remedy the defect.3
23. GM also violated the TREAD Act by failing to timely inform NHTSA of the ignition switch defects and allowed cars to remain on the road with these defects. These same acts and omissions also violated various State consumer protection laws as detailed below.
24. Upon information and belie±: prior to the sale of the Defective Vehicles, GM knew of the Ignition Switch Defect through sources such as pre-release design, manufacturing, and field testing data; in-warranty repair data; early consumer complaints made directly to GM, collected by the National Highway Transportation Safety Administration's Office of Defect Investigation
("NHTSA ODI") and/or posted on public online vehicle owner forums; field testing done in
49 U.S.C.§§ 30101-30170 49 U.S.C. § 30118(c)(I) & (2). 49 U.S.C. § 30118(b)(2)(A) & (B) 7 09-50026-regCase 1:15-cv-00155-JMF Doc 13083-2 Filed Document 02/13/15 1 Entered Filed 01/09/15 02/13/15 Page14:10:10 8 of 29 Exhibit B Pg 9 of 30
response to those complaints; aggregate data from GM dealers; and accident data. Yet, despite this knowledge, GM failed to disclose and actively concealed the Ignition Switch Defect from
Plaintiffs and the public, and continued to market and advertise the Defective Vehicles as reliable and safe vehicles, which they are not.
25. In addition to the ignition switches, it is now believed that the faulty wiring system in the ignition switches also created the defective air bags and defective power steering, and that these defects resulted in the injuries and damages complained of herein.
26. Plaintiffs were also damaged by the acts and omissions of Old GM for which GM is liable through successor liability.
PARTIES
27. Jeanine Bachelder is a resident of Dickinson, Texas.
28. Bryan Bastidas is a resident of Santa Ana, California.
29. Benita Black is a resident of Waldorf: Maryland.
30. Debbie Champagne, Individually and as Representative of the Estate of Dustin
Champagne, Deceased, is a resident of Belcourt, ND.
31. Amanda Delp is a resident of Virginia.
32. Ashley Dixon is a resident of New Jersey.
33. Andre Edwards is a resident of Michigan.
34. David Fritze, Individually and as Representative of the Estate of Dean Fritze,
Deceased, and as Representative of the Estate of Mineva Fritze, Deceased, is a resident of
Minnesota.
35. Chasity Bliss Kitzmiller Green, is a resident of West Virginia.
36. Tessamena Hankerson, is a resident of Georgia.
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37. Eduardo Jimenez, Jr., Individually and as Representative of the Estate of Jordon
Jimenez, Deceased, is a resident of Washington.
38. Eugene Landry is a resident of Louisiana.
39. Gina Lawrimore is a resident of South Carolina.
40. Linda Shaffer, Individually and as Representative of the Estate of Lloyd Shaffer,
Deceased; and Maurice Shaffer, are residents of Mississippi.
41. Dawn Simecek is a resident of Florida.
42. Austin Lee Slade is a resident of Arizona.
43. Thomas Stafford, Individually and as Representative of the Estate of Theodore
Stafford, is a resident of Michigan.
44. Judd Weisjahn, Individually and as Representative of the Estate of Rachael
Weisjahn, Deceased, is a resident of California.
45. Corinna Wilson is a resident of Maryland.
46. General Motors Corporation was a Delaware corporation with its headquarters in
Detroit, Michigan. The Corporation through its various entities designed, manufactured, marketed, distributed and sold Pontiac, Saturn, Chevrolet and other brand automobiles in Michigan, the State of Texas, and multiple other locations in the United States and worldwide.
47. In 2009, General Motors Corporation ("Old GM") filed for bankruptcy, and substantially all of its assets were sold pursuant to a Master Sales and Purchase Agreement
("Agreement") to General Motors LLC ("GM")
48. Under the Agreement, General Motors LLC also expressly assumed certain liabilities of General Motors Corporation, including certain statutory requirements:
From and after the Closing, Purchaser [GM] shall comply with the certification, reporting and recall requirements of the National Traffic and
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Motor Vehicle Safety Act, the Transportation Recall Enhancement, Accountability and Documentation Act, the Clean Air Act, the California Health and Safety Code and similar Laws, in each case, to the extent applicable in respect of vehicles and vehicle parts manufactured or distributed by Seller.
In addition, General Motors LLC expressly set forth that it:
shall be responsible for the administration, management and payment of all Liabilities arising under (i) express written warranties of Sellers [General Motors Corporation] that are specifically identified as warranties and delivered in connection with the sale of new, certified used or pre-owned vehicles or new or remanufactured motor vehicle parts and equipment (including service parts, accessories, engines and transmissions) manufactured or sold by Sellers or Purchaser prior to or after the Closing and (ii) Lemon Laws.
49. Because GM acquired and operated General Motors Corporation and ran it as a continuing business enterprise, and because GM was aware from its inception of the Ignition
Switch Defects in the Defective Vehicles, GM is liable through successor liability for the deceptive and unfair acts and omissions of Old GM, as alleged in this Complaint.
50. General Motors LLC is a Delaware corporation with its headquarters in Detroit,
Michigan. General Motors LLC is registered with the Secretary of State and conducts business in all fifty states (including the District of Columbia). GM was incorporated in 2009 and on July 10,
2009, acquired substantially all assets and assumed certain liabilities of General Motors
Corporation through a Section 363 sale under Chapter 11 of the U.S. Bankruptcy Code.
51. At all times relevant herein, General Motors Corporation and its successor in interest General Motors LLC were engaged in the business of designing, manufacturing, constructing, assembling, marketing, warranting, distributing, selling, leasing, and servicing automobiles, including the Defective Vehicles, and other motor vehicles and motor vehicle components throughout the United States.
52. GM is referred to in this Complaint as "Defendant''.
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JURISDICTION AND VENUE
53. Plaintiffs' filing of this Complaint in this district does not alter the choice-of-law analysis and does not constitute a waiver of any of the Plaintiffs' rights to transfer to another district at the conclusion of pretrial proceedings in this case. Plaintiffs have filed this Complaint in this district in order to advance the efficient and orderly resolution of claims arising from
Defendant's conduct and its attendant nationwide devastating effects. At the conclusion of pretrial proceedings in this case, Plaintiffs will be entitled to transfer their claim to the state of their residence.
54. This Court has diversity jurisdiction over this action under 28 U.S.C. § l 332(a) because the amount in controversy exceeds $75,000.00 and Plaintiffs are citizens of a different state than Defendant.
55. Venue is proper in this District under 28 U.S.C. § 1391 because Defendant, as a corporation, is deemed to reside in any judicial district in which it is subject to personal jurisdiction. Additionally, Defendant transacts business within the District, and some of the events establishing the claims arose in this District.
FACTUAL ALLEGATIONS
The Defective Vehicles
56. The Chevrolet Cobalt was a compact car introduced in the United States in 2004 for the 2005 model year. The Cadillac Deville was introduced in 1949, and the last model to be formally known as a De Ville was the 2005 Cadillac De Ville, a full-size sedan, the largest car in the Cadillac model range. The Pontiac Grand Prix was a luxury car first introduced in 1962, and was discontinued in 2008. The Chevrolet HHR was a compact SUV introduced in the United
States in 2005, and discontinued in 2011. The Pontiac Grand Am was a mid-size car and later a
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compact car introduced in 1972, and discontinued in 2005. The Saturn Ion was a compact car introduced in 2003 and discontinued in 2007. The Chevrolet Colorado is a compact pickup truck introduced in 2004 and discontinued in 2012.
57. These vehicles were constructed on GM's GMT355 Platform, GM's Delta
11 Platform, GM's A Platform, GM's G Platform and GM's W-body 2 58. Upon information and beliet: GM promoted these Defective Vehicles as safe and reliable in numerous marketing and advertising materials. GM Field Reports and Internal Testing Reveal a Problem 59. In 2001, during pre-production of the 2003 Saturn Ion, GM engineers learned that the ignition switch could unintentionally move from the "run" position to the "accessory" or "off' position. In an internal report generated at the time, GM identified the cause of the problem as "low detent plunger force." The "detent" is part of the ignition switch's inner workings that keeps the switch from rotating from one setting to another unless the driver turns the key. The report stated that than an "ignition switch design change" was believed to have resolved the problem. 60. In 2003, a second report documented an incident with a Saturn Ion where "a service technician observed a stall while driving." There the technician noted that the owner had several keys on the key ring and surmised that the "weight of the keys had worn out the ignition switch" and replaced the switch and closed the matter. 61. GM engineers encountered the problem again in 2004 just prior to the launch of the 2005 Chevrolet Cobalt. GM learned of an incident in which a Cobalt vehicle suddenly switched out of the "run" position and lost engine power. GM engineers were able to replicate this problem during test drives of the Cobalt. According to GM, an engineering inquiry known as a Problem Resolution Tracking System ("PRTS") was able to pinpoint the problem and evaluate a number of 12 09-50026-regCase 1:15-cv-00155-JMF Doc 13083-2 Filed Document 02/13/15 1 Entered Filed 01/09/15 02/13/15 Page 14:10:10 13 of 29 Exhibit B Pg 14 of 30 solutions; however, after considering "lead time required, cost, and effectiveness," GM decided to do nothing. 62. After the Chevrolet Cobalt entered the market in 2004, GM began rece1vmg complaints about incidents of sudden loss of engine power. GM engineers determined that the low torque in the ignition switch could cause the key to move from the "run" to the "accessory" or "off' position under ordinary driving conditions with normal key chains because "detent efforts on ignition switch are too low, allowing key to be cycled to off position inadvertently." Specifically, in February 2005, GM engineers concluded that "there are two main reasons that we believe can cause a lower effort in turning the key: a lower torque detent in the ignition switch .. . [and a] low position of the lock module [on] the [steering] column." 63. Additional PRTSs were opened to investigate the problem, and in May 2005, GM engineers proposed redesigning the key head from a "slotted" to a "hole" configuration to prevent inadvertent shifting of the key in the ignition. Although GM initially approved the design, the company once again declined to act. 64. In testimony April 1, 2014, before the House Committee on Energy and Commerce, GM CEO Mary Barra explained that the proposed "fix" for the Ignition Switch Defect was rejected in 2005 because it would have taken too long and cost too much. Ms. Barra testified that GM's decision-making was the product of a "cost culture" versus a "culture that focuses on safety and quality." 65. In April 2006, GM finally approved a design change for the Chevrolet Cobalt's ignition switch. According to GM, the changes included a new detent plunger and spring, but there was no corresponding change in the ignition switch part number. GM estimates that the redesigned ignition switch was produced for all Subject Vehicles during the 2007 model year. On 13 09-50026-regCase 1:15-cv-00155-JMF Doc 13083-2 Filed Document 02/13/15 1 Entered Filed 01/09/15 02/13/15 Page 14:10:10 14 of 29 Exhibit B Pg 15 of 30 information and belief: this redesigned ignition switch did not cure the defect in the original switch and also did not meet design specifications. 66. The newly designed switch and the faulty ignition switch both had the same part number assigned to them. Upon information and belief this action was intended to make it difficult to trace the defective switch back to its original design in 2001. 67. After another PRTS in 2009, GM redesigned the Chevrolet Cobalt key, changing the top of the key from a "slot" design to a "hole" design-as had been suggested in 2005. GM instituted the change after finding that consumers "with substantially weighted key chains/additional keys hanging from ignition key have experienced accidental ignition shut-off" and the design change was intended to "significantly reduce downward force and the likelihood of this occurrence." The new key design was produced for the 2010 model year. On information and belief: this redesigned ignition switch did not cure the defect in the original switch and also did not meet design specifications. 68. The component required to fix the Ignition Switch Defect costs approximately $2 to $5. GM management estimated that replacement components would cost an additional 90 cents per vehicle, but would only save l 0 to 15 cents in warranty costs. 69. GM also now acknowledges that Field Product Reports and PRTS reports related to the Subject Vehicles from 2003 and 2006 concerned engine stalling in the Saturn Ion and may be related to the Ignition Switch Defect. Gil! Issues Information Service Bulletins 70. In 2005, as a result of internal investigation, GM issued an Information Service Bulletin entitled the "Information on Inadvertent Turning of Key Cylinder, Loss of Electrical System and No DTCs" (#05-02-35-007) to GM dealers warning about a stalling problem related 14 09-50026-regCase 1:15-cv-00155-JMF Doc 13083-2 Filed Document 02/13/15 1 Entered Filed 01/09/15 02/13/15 Page 14:10:10 15 of 29 Exhibit B Pg 16 of 30 to inadvertent shifting of the ignition switch. The bulletin applied to 2005 and 2006 Chevrolet Cobalt, 2006 Chevrolet HHR, 2005 and 2006 Pontiac Pursuit (Canada only), 2006 Pontiac Solstice, and 2003 to 2006 Saturn Ion, which all had the same ignition switch. 71. The bulletin advised that "[t]here is potential for the driver to inadvertently turn off the ignition due to low ignition key cylinder torque/effort," noting that risk was greater "if the driver is short and has a large and/or heavy key chain" such that "the driver's knee would contact the key chain while the vehicle was turning." GM dealers were told to inform consumers of this risk, and recommend "removing unessential items from their key chain." The bulletin also informed dealers that GM had developed an insert for the key ring so that "the key ring cannot move up and down in the slot any longer - it can only rotate on the hole" and that the key ring has been replaced by a smaller design such that "the keys [will] not hang[ ] as low as in the past." 72. On July 19, 2005, the New York Times reported that Chevrolet dealers were telling Cobalt owners to remove extra items from their key rings to prevent accidental stalling of their vehicles. Alan Adler, GM's Manager for Safety Communications, stated that the problem manifested in only "rare cases when a combination of factors is present." Adler advised that consumers "can virtually eliminate this possibility by taking several steps, including removing nonessential material from their key rings." 73. The Times reporter noted that his wife had already encountered the problem with the Chevrolet Cobalt: she was driving on a freeway, accidentally bumped the steering column with her knee, and found the engine "just went dead." She was able to safely coast to the side of the road. When the vehicle was brought back to the Chevrolet dealer for an inspection, nothing was found wrong and they were advised of the service bulletin. The reporter stated that the key chain 15 09-50026-regCase 1:15-cv-00155-JMF Doc 13083-2 Filed Document 02/13/15 1 Entered Filed 01/09/15 02/13/15 Page 14:10:10 16 of 29 Exhibit B Pg 17 of 30 being used at the time of the stalling incident was provided by GM, and included only the key fob and a tag. 74. GM, in a statement at the time through Adler, insisted that this problem was not a safety issue because "[w ]hen this happens, the Cobalt is still controllable" and the "engine can be restarted after shitting to neutral." Adler also claimed that this ignition issue was widespread because "practically any vehicle can have power to a running engine cut off by inadvertently bumping the ignition .... " 75. In October 2006, GM updated the Information Service Bulletin, "Information on Inadvertent Turning of Key Cylinder, Loss of Electrical System and No DTCs" (#05-02-35- 007 A) to include additional vehicles and model years. Specifically, GM included the 2007 Chevrolet Cobalt, the 2007 Chevrolet HHR, the 2007 Pontiac G5, the 2007 Pontiac Solstice, the 2007 Saturn Ion, and the 2007 Saturn Sky. The updated bulletin included the same service advisories to GM dealers as the earlier version. 76. According to GM, the service bulletin was the appropriate response "given that the car's steering and braking systems remained operational even after a loss of engine power." GM reports that GM dealers provided 474 key inserts to GM vehicle owners who brought their vehicles in for servicing. Reports of Unintended Engine Shut Down 77. A number ofreports from warranty and technical assistance data beginning in 2003, "addressed complaints of stalling Ion vehicles." Despite these reports, the Saturn Ion remained in production until 2007. 16 09-50026-regCase 1:15-cv-00155-JMF Doc 13083-2 Filed Document 02/13/15 1 Entered Filed 01/09/15 02/13/15 Page 14:10:10 17 of 29 Exhibit B Pg 18 of 30 78. On May 26, 2005, a reporter for The Daily Item in Sunbury, Pennsylvania reviewed the Chevrolet Cobalt and found that during his test drives of the vehicle there were "[u]nplanned engine shutdowns [that] happened four times during a hard-driving test week" with the vehicle. Crash Reports and Data 79. The Defendant knew of the fgnition Switch Defect and its deadly consequences for consumers, but concealed that information from safety regulators and the public. 80. National Highway Traffic Safety Administration (NHTSA) data shows that there were three fatal car crashes involving Saturn Ions due to a failure of the airbag to deploy prior to July 2005. 81. In July 2005, a sixteen-year old was killed when her 2005 Chevrolet Cobalt crashed with the ignition switch in the accessory mode, which disabled the airbag. 82. In 2006, there were at least two fatalities associated with a Chevrolet Cobalt crash. Information from the car's data recorder indicated that the ignition switch was in "accessory" instead of run, and the front airbags failed to deploy. 83. In 2007, GM reviewed available sensor data from nine front-impact Cobalt crashes where the airbags did not deploy. GM discovered that in four of the crashes, the ignition was in the "accessory position." Crash information for the other Subject Vehicles was not reviewed. 84. In 2007, NHTSA's early warning division reviewed available data provided by GM on airbag non-deployments in Chevrolet Cobalt vehicles. This review identified 43 incidents in which airbags may not have deployed in a crash. The early warning division referred the case to NHTSA's data analysis division for further screening. A defects panel was convened, but atl:er reviewing the data and consulting with GM, the panel ultimately concluded that "[t]he data available at the time of this evaluation did not indicate a safety defect or defect trend that would 17 09-50026-regCase 1:15-cv-00155-JMF Doc 13083-2 Filed Document 02/13/15 1 Entered Filed 01/09/15 02/13/15 Page 14:10:10 18 of 29 Exhibit B Pg 19 of 30 warrant the agency opening a formal investigation." In prepared remarks delivered April 1, 2014, to the Committee on Energy and Commerce, NHTSA Acting Administrator David Friedman stated, "At the time of these reviews, NHTSA did not have the information that GM has since provided-for instance, new evidence linking airbag non-deployment to faulty ignition switches." 85. GM has identified 23 frontal-impact crashes in the United States involving 2005 to 2007 Chevrolet Cobalts and 2007 Pontiac G5s in which the Ignition Switch Defect may have caused or contributed to the failure of the safety airbags to deploy. 86. GM has identified 8 frontal-impact crashes in the United States involving 2003 to 2007 Saturn Ion vehicles in which the Ignition Switch Defect may have caused or contributed to the failure of the safety airbags to deploy. These crashes resulted in four fatalities and six injuries to occupants. 87. GM has identified 3 frontal-impact crashes in the United States involving 2006 and 2007 model year Chevrolet HHR vehicles in which the Ignition Switch Defect may have caused or contributed to the failure of the safety airbags to deploy. These crashes resulted in three injuries to occupants. FACTS SPECIFIC TO EACH PLAINTIFF 88. On July 23, 2007, Jeanine Bachelder was driving a 2006 Chevrolet Cobalt (V[N l G 1AL55F667790211 ), when suddenly and unexpectedly, the vehicle inexplicably went off the road, and collided with a sign, resulting in severe and permanent injuries to Bachelder. The airbags did not deploy in this accident. This vehicle is subject to recalls involving the ignition switch, power steering assist and air bags, as well as multiple other recalls. 89. On April 2, 2007, Bryan Bastidas was driving a 2006 Chevrolet Cobalt (V[N 1G1AK55F867620726), when suddenly and unexpectedly, the vehicle shut off: the steering 18 09-50026-regCase 1:15-cv-00155-JMF Doc 13083-2 Filed Document 02/13/15 1 Entered Filed 01/09/15 02/13/15 Page 14:10:10 19 of 29 Exhibit B Pg 20 of 30 locked, resulting in a crash and severe and permanent injuries to Bastidas. The air bags did not deploy in this accident. This vehicle is subject to recalls involving the ignition switch, power steering assist and air bags, as well as multiple other recalls. 90. Benita Black was driving a 2007 Chevrolet Cobalt (VIN 1G1AK55F76783 l 917), when the steering locked, resulting in a crash and severe and permanent injuries to Black. This vehicle is subject to recalls involving the ignition switch, power steering assist and air bags, as well as multiple other recalls. 91. On May 25, 2007, Dustin Champagne was a passenger in a 2007 Chevrolet Cobalt (VIN 1GlAL15F767865054), when suddenly and unexpectedly, the driver of the vehicle lost control of the vehicle and crashed, causing Champagne to be ejected and killed. The passenger air bag did not deploy during this accident. This vehicle is subject to recalls involving the ignition switch, power steering assist and air bags, as well as multiple other recalls. 92. On May 27, 2008, Amanda Delp was driving a 2006 Chevrolet Cobalt (VIN 1G1AL15Fl67847522) when suddenly and unexpectedly, it veered off the roadway, rolled over, resulting in severe and permanent injuries to Delp. This vehicle is subject to recalls involving the ignition switch, power steering assist and air bags, as well as multiple other recalls. 93. On January 10, 2007, Ashley Dixon was driving a 2003 Saturn [on (VIN 1G8AL52F53Z119036), when suddenly and unexpectedly, she was struck head-on and the airbags failed to deploy, resulting in severe and permanent i1tjuries to Dixon. This vehicle is subject to recalls involving the ignition switch, power steering assist and air bags, as well as multiple other recalls. 94. On March 7, 2007, Andre Edwards was driving a 2002 Cadillac Deville (VIN 1G6AB54 Y82UC0608 l 202), when suddenly and unexpectedly, the vehicle went out of control 19 09-50026-regCase 1:15-cv-00155-JMF Doc 13083-2 Filed Document 02/13/15 1 Entered Filed 01/09/15 02/13/15 Page 14:10:10 20 of 29 Exhibit B Pg 21 of 30 and struck a guard rail, resulting in severe and permanent injuries to Edwards. The air bags did not deploy. This vehicle is subject to recalls involving the ignition switch and air bags, as well as multiple other recalls. 95. On or about January 4, 2009, Dean Fritze and Mineva Fritze were in a 2009 Chevrolet Cobalt (VIN 1G1AS558H397104338), when suddenly and unexpectedly, the vehicle went out of control, resulting in serious and fatal injuries to Dean Fritze and Mineva Fritze. This vehicle is subject to recalls involving the ignition switch, power steering assist and air bags, as well as multiple other recalls. 96. On April 9, 2006, Chasity Bliss Kitzmiller Green was operating a 2006 Chevrolet Cobalt (VIN 1G1AM15BX67718995), when suddenly and unexpectedly, she hit a tree head-on, resulting in severe and permanent injuries to Green. The airbags did not deploy. This vehicle is subject to recalls involving the ignition switch, power steering assist and air bags, as well as multiple other recalls. 97. On June 7, 2003, Tessamena Hankerson was operating her 1997 Pontiac Grand Am, when suddenly and unexpectedly, she lost control of her vehicle, and was struck from behind and pushed into trafiic and struck by other vehicles. The air bags did not deploy. This vehicle is subject to recalls involving the ignition switch, as well as multiple other recalls. 98. On January 23, 2007, the Decedent, Jordon Jimenez was operating a 2006 Chevrolet Cobalt (VIN 1G1AK55F467826240), when suddenly and unexpectedly, he lost control of the vehicle, resulting in fatal injuries to Jimenez. This vehicle is subject to recalls involving the ignition switch, power steering assist and air bags, as well as multiple other recalls. 99. [n 2005, Eugene Landry was operating a 2007 Chevrolet Cobalt (VIN 1G8AL52F23Z2023 l2), when suddenly and unexpectedly, he lost control of the vehicle, resulting 20 09-50026-regCase 1:15-cv-00155-JMF Doc 13083-2 Filed Document 02/13/15 1 Entered Filed 01/09/15 02/13/15 Page 14:10:10 21 of 29 Exhibit B Pg 22 of 30 in severe and permanent injuries to Landry. The airbags did not deploy. This vehicle is subject to recalls involving the ignition switch, power steering assist and air bags, as well as multiple other recalls. 100. On September 13, 2002, Gina Lawrimore was driving her 1999 Pontiac Grand Prix, when suddenly and unexpectedly, she lost control of her vehicle, hit a tractor and flipped the vehicle, resulting in severe and permanent injuries to Lawrimore. The air bags did not deploy. This vehicle is subject to recalls involving the steering and air bags, as well as multiple other recalls. l 01. On February 14, 2009, the Decedent Lloyd Shaffer was operating a 2006 Pontiac Grand Prix (MS LPN 945N9) and Maurice Shaffer was a passenger in the 2006 Pontiac Grand Prix, when suddenly and unexpectedly, Lloyd Shafter lost control of the vehicle, resulting in fatal injuries to himself and severe and permanent injuries to Maurice Shaffer. This vehicle is subject to recalls involving the ignition switch and steering, as well as multiple other recalls. 102. On November 2, 2007, Dawn Simecek was operating a 2006 Chevrolet Cobalt (VIN lG 1AP14P967665582), when suddenly and unexpectedly, she experienced a sudden loss of power while driving, causing her to lose control of the vehicle and hit a tree head-on, resulting in severe and permanent injuries to Simecek. This vehicle is subject to recalls involving the ignition switch, power steering assist and air bags, as well as multiple other recalls. 103. On March 29, 2006, Austin Lee Slade was a passenger in a 2005 Chevrolet Cobalt (VIN 1GlAK52F857572020), when suddenly and unexpectedly, the driver lost control of his vehicle, resulting in severe and permanent injuries to Slade. The airbags did not deploy. This vehicle is subject to recalls involving the ignition switch, power steering assist and air bags, as well as multiple other recalls. 21 09-50026-regCase 1:15-cv-00155-JMF Doc 13083-2 Filed Document 02/13/15 1 Entered Filed 01/09/15 02/13/15 Page 14:10:10 22 of 29 Exhibit B Pg 23 of 30 104. On February 25, 2007, the Decedent, Theodore Stafford was operating a 2006 Chevrolet Colorado (VIN l GCDT136668246138), when suddenly and unexpectedly, he lost control of the vehicle, hit a pole and the car burst into flames, resulting in fatal injuries to Stafford. This vehicle is subject to multiple recalls. 105. On August 28, 2008, the Decedent Rachael Weisjahn was a passenger in a 2006 Chevrolet HHR (VIN 3GNDA23P56S34932). The driver lost control of the vehicle, causing it to rollover. When Weisjahn exited the vehicle (i.e., became a pedestrian), she was struck by another car, resulting in her death. This vehicle is subject to recalls involving the ignition switch and air bags, as well as multiple other recalls. 106. On April 17, 2009, Corinna Wilson was operating a 2007 Chevrolet Cobalt (VIN l G lAK55F577 l 902 l 8), when suddenly and unexpectedly, it suffered a sudden loss of power, preventing Wilson from being able to safely navigate the vehicle, and resulting in a crash and severe and permanent injuries to Wilson. This vehicle is subject to recalls involving the ignition switch, power steering assist and air bags, as well as multiple other recalls. CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF Negligence, Gross Negligence and Recklessness 107. Plaintiffs adopt and incorporate by reference all prior paragraphs of the Complaint as if set out here in full. 108. Under the June 26, 2009 Amended and Restated Master Sale and Purchase Agreement, wherein New GM acquired certain Old GM assets, New GM acquired knowledge of Old GM's activities and the defective ignition switch and other defects via the minds of the employees, officers and managers it acquired through the Sale Order. New GM acquired knowledge of Old GM's activities and the defective ignition switch and other defects via the books 22 09-50026-regCase 1:15-cv-00155-JMF Doc 13083-2 Filed Document 02/13/15 1 Entered Filed 01/09/15 02/13/15 Page 14:10:10 23 of 29 Exhibit B Pg 24 of 30 and records obtained and/or acquired as a result of the sale order. Thus, the duties of Old GM are part of the foundation for New GM's liability. Additionally, New GM's liability for damages is attributable to its own post-sale conduct. 109. Old GM and New GM owed the Plaintiffs and public a duty to design, manufacture, fabricate, assemble, inspect, market, distribute, sell, and/or supply products in such a way as to avoid harm to persons using them such as Plaintiffs. 110. Old GM and New GM owed the Plaintiffs and public a duty to detect known safety defects in GM vehicles. 111. Old GM and New GM owed the Plaintiffs and public a duty, once it discovered the ignition switch defect, to provide thorough notice of the defect, including a warning that the defective vehicles should not be driven until an appropriate repair procedure is developed and performed. 112. Old GM and New GM owed the Plaintiffs and public a duty, once it discovered the ignition switch detect, to ensure that an appropriate repair procedure was developed and made available to drivers. 113. Old GM and New GM knew that their customers and the public, such as Plaintiffs, expect that the company will employ all reasonable efforts to detect safety defects, warn drivers of their existence, and develop and make available an appropriate repair procedure. 114. Old GM and New GM's efforts to discover, provide notice of, and provide repair procedures for safety related defects exist for the benefit of the Plaintiffs, other passengers and drivers of GM vehicles. Old GM and New GM was aware that by providing maintenance and repair information and assistance, including through its authorized dealerships, Old GM and New 23 09-50026-regCase 1:15-cv-00155-JMF Doc 13083-2 Filed Document 02/13/15 1 Entered Filed 01/09/15 02/13/15 Page 14:10:10 24 of 29 Exhibit B Pg 25 of 30 GM had a responsibility to Plaintiffs, other passengers and drivers to take the reasonable measures listed above. 115. Independent ofany failures by Old GM as described herein, between July l 0, 2009 and March 2014, New GM breached its duties to the Plaintiffs by failing to provide appropriate notice of and repair procedures for the ignition switch defect and other defects in the Plaintiffs' vehicles. In doing so, New GM departed from the reasonable standard of care required of it. 116. It was foreseeable that if the New GM did not provide appropriate notice and repair procedures for the defect, the Plaintiffs and other passengers and drivers would be endangered. l 17. The Plaintiffs' injuries were reasonably foreseeable to Old GM and New GM. 118. The Plaintiffs could not through the exercise of reasonable diligence have prevented the injuries and death caused by Old GM and New GM's negligence and gross negligence. 119. Old GM and New GM's acts and omissions, when viewed objectively from the actor's standpoint, involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others. Old GM and New GM nevertheless proceeded with conscious indifference to the rights, safety and welfare of others. SECOND CLAIM FOR RELIEF Fraudulent Concealment 120. Plaintiffs hereby incorporate by reference the allegations contained in the preceding paragraphs of this Complaint. 121. As set forth above, Defendant concealed and/or suppressed material facts concerning the safety of their vehicles from Plaintiffs, the public and NHTSA. GM knew that the Defective Vehicles were designed and manufactured with defective ignition switches, defective air bags, defective power steering, defective seatbelts and defective powertrains, but GM concealed those material facts. 24 09-50026-regCase 1:15-cv-00155-JMF Doc 13083-2 Filed Document 02/13/15 1 Entered Filed 01/09/15 02/13/15 Page 14:10:10 25 of 29 Exhibit B Pg 26 of 30 122. Defendant had a duty to disclose these safety issues because they consistently marketed their vehicles as reliable and safe and proclaimed that Defendant maintains the highest safety standards. Once Detendant made representations to the public about safety, Defendant was under a duty to disclose these omitted facts, because where one does speak one must speak the whole truth and not conceal any facts which materially qualify those facts stated. One who volunteers information must be truthful, and the telling of a half-truth calculated to deceive is fraud. 123. In addition, Defendant had a duty to disclose these omitted material facts because they were known and/or accessible only to Defendant who has superior knowledge and access to the facts, and Defendant knew they were not known to or reasonably discoverable by Plaintiffs. These omitted facts were material because they directly impacted the safety of the Defective Vehicles, namely the vehicles in which Plaintiffs were drivers and/or passengers resulting in their death and/or serious and permanent injuries. Whether or not a vehicle ignition switch will unexpectedly and suddenly move to the "off" or "accessory" position, thereby disabling power steering, anti-lock brakes and air bag deployment while the car is in motion, are material safety concerns. Defendant possessed exclusive knowledge of the defects rendering Defective Vehicles inherently more dangerous and unreliable than similar vehicles. 124. Defendant actively concealed and/or suppressed these material facts, in whole or in part, with the intent to induce consumers to purchase Defective Vehicles that caused serious injury and death. 125. Plaintiffs were unaware of these omitted material facts and would not have entered into a Defective Vehicle as a passenger or driver if he had known of the concealed and/or 25 09-50026-regCase 1:15-cv-00155-JMF Doc 13083-2 Filed Document 02/13/15 1 Entered Filed 01/09/15 02/13/15 Page 14:10:10 26 of 29 Exhibit B Pg 27 of 30 suppressed facts. Defendant was in exclusive control of the material facts concerning the Ignition Switch Defect and such facts were not known to the public. 126. As a result of the concealment and/or suppression of facts, Plaintiffs Dustin Champagne, Dean Fritze, Mineva Fritze, Jordon Jimenez, Lloyd Shaffer, Theodore Stafford and Rachael Weisjahn sustained horrific injuries and unconscionable pain and suffering prior to their death and Plaintiffs Jeanine Bachelder, Bryan Bastidas, Benita Black, Amanda Delp, Ashley Dixon, Andre Edwards, Chasity Bliss Kitzmiller Green, Tessamena Hankerson, Eugene Landry, Gina Lawrimore, Dawn Simecek, Austin Lee Slade, Theodore Stafford and Corinna Wilson sustained senous and permanent injuries and extreme pain and suffering subsequent to the accident. 127. Defendant's acts were done maliciously, oppressively, deliberately, with intent to defraud, and in reckless disregard of Plaintiffs' and the public's rights and well-being to enrich Defendant. Defendant's conduct warrants an assessment of punitive damages in an amount sufficient to deter such conduct in the foture, which amount is to be determined according to proof. THIRD CLAIM FOR RELIEF Fraud by Non-Disclosure 128. Plaintiffs hereby incorporate by reference the allegations contained in the preceding paragraphs of this Complaint. 129. As early as 2001, during pre-production development of the Saturn Ion, Old GM became aware of issues relating to the ignition switch "passlock" system. The 2001 report stated that the problem included a "low detent plunger force" in the ignition switch. 130. In 2003, before the launch of the 2005 Cobalt, Old GM became aware of incidents wherein the vehicle engine would suddenly lose power in the event the key moved out of the "run" position when the driver inadvertently contacted the key or steering column. An investigation was 26 09-50026-regCase 1:15-cv-00155-JMF Doc 13083-2 Filed Document 02/13/15 1 Entered Filed 01/09/15 02/13/15 Page 14:10:10 27 of 29 Exhibit B Pg 28 of 30 opened and, after consideration of lead-time required and the cost and effectiveness of potential solutions, the investigation was closed with no action taken. 131. As set forth above, from July 2009 to the present, New GM intentionally concealed or failed to disclose material facts from the Plaintift: the public and NHTSA. 132. Additionally, from its inception in 2009, New GM possessed independent knowledge of the defects in the Plaintiffs' vehicles and the need to undertake multiple design steps to resolve those defects to prevent injury and economic harm to vehicle owners such as Plaintiffs. This knowledge was based, in part, on the information from records, files, reports and other documents and materials regarding the defective ignition switch maintained by Old GM, all of which were included in the assets purchased by New GM during the bankruptcy sale. 133. Old GM had a duty to disclose the facts to the Plaintiffs and Old GM knew: ( 1) that the Plaintiffs were ignorant of the material facts that New GM did not disclose and/or intentionally concealed; and (2) the Plaintiffs did not have an equal opportunity to discover the material facts that New GM did not disclose and/or intentionally concealed. Old GM's fraud, fraudulent concealment and fraudulent non-disclosure were all components of the subject incidents of the Plaintiffs. Because New GM acquired knowledge of Old GM's activities and the defective ignition switch as well as other defects via the minds of the employees, officers, managers, books and records obtained and/or acquired as a result of the June 26, 2009 Amended and Restated Master Sale and Purchase Agreement and subsequent Sale Order, New GM is expressly liable to Plaintiffs. Further, the duties of Old GM are part of the foundation for the liability acquired by New GM. 27 09-50026-regCase 1:15-cv-00155-JMF Doc 13083-2 Filed Document 02/13/15 1 Entered Filed 01/09/15 02/13/15 Page 14:10:10 28 of 29 Exhibit B Pg 29 of 30 134. Independent of any failures by Old GM as described herein, between July 10, 2009 and March, 2014, New GM breached its duties to the Plaintiffs by failing to disclose knowledge of the defective ignition switch to Plaintiffs. 135. New GM had a duty to disclose the facts to the Plaintiffs and New GM knew: (1) that the Plaintiffs were ignorant of the material facts that New GM did not disclose and/or intentionally concealed; and (2) the Plaintiffs did not have an equal opportunity to discover the material facts that New GM did not disclose and/or intentionally concealed. 136. By failing to disclose these material facts, New GM intended to induce the Plaintiffs to take some action or refrain from acting. 137. The Plaintiffs relied on New GM's non-disclosure and they were killed or injured as a result of acting without knowledge of the undisclosed facts. JURY DEMAND Pursuant to Federal Rule of Civil Procedure 38(b ), Plaintiffs demand a trial by jury of any and all issues in this action so triable. PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that the Court enter judgment in Plaintiffs' favor and against Defendant as follows: A. an award to Plaintiffs for actual damages, compensatory, exemplary, and statutory penalties, damages, including interest, in an amount to be proven at trial; B. an award of attorneys' fees and costs, as allowed by law; C. an award of pre-judgment and post-judgment interest, as provided by law; D. leave to amend this Complaint to conform to the evidence produced at trial; and E. such other relief as may be appropriate under the circumstances. Dated: January 16, 2015 28 09-50026-regCase 1:15-cv-00155-JMF Doc 13083-2 Filed Document 02/13/15 1 Entered Filed 01/09/15 02/13/15 Page 14:10:10 29 of 29 Exhibit B Pg 30 of 30 RESPECTFULLY SUBMITTED, James R. D an, II (LA B 4 785) David B. Ft« nco (TX Bar # 24072097) Chad J. Primeaux (LA Bar# 30024) THE DUGAN LAW FIRM, APLC 365 Canal Street, Suite 1000 New Orleans, Louisiana 70130 Telephone: (504) 648-0180 Facsimile: (504) 648-0181 Mitchell A Toups (TX Bar# 20151600) WELLER, GREEN, TOUPS & TERRELL, LLP 2615 Calder Ave., Suite 400 Beaumont, TX 77702 Telephone: (409) 838-0101 Facsimile: (409) 832-8577 Email: Gregory K. Evans (TX Bar No. 24002065) Law Offices of Gregory K. Evans, PLLC 3900 Essex, Suite 690 Houston, TX 77027 (713) 840-1299 Facsimile: (281) 254-7886 Email: c==c"""-"'.'.--'-"O-'-'=-'-'-:.o=.:.:...o James W. Flood, III FLOOD LAW GROUP, LLP 1101 Pennsylvania Ave. NW, Suite 600 Washington, DC 20004 Telephone: (202) 756-1970 Facsimile: (202) 756-7323 Attorneys.for Plaintiffs 29 09-50026-reg Doc 13083-3 Filed 02/13/15 Entered 02/13/15 14:10:10 Exhibit C Pg 1 of 33 Exhibit C 09-50026-regCase 1:15-cv-00918-JMF Doc 13083-3 Filed Document 02/13/15 1 Entered Filed 02/06/15 02/13/15 14:10:10Page 1 of 32 Exhibit C Pg 2 of 33 15 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK INRE: 14-MD-2543 (JMF) "••·.,;, .. GENERAL MOTORS LLC IGNITION COMPLAINT F · SWITCH LITIGATION This Document Relates To GAYLYNNBACON, PLAINTIFF, U.s.n.c. S.D. N.Y .. v. CASHIERS GENERAL MOTORS, LLC, DEFENDANT. - 1 - 1217073.2 09-50026-regCase 1:15-cv-00918-JMF Doc 13083-3 Filed Document 02/13/15 1 Entered Filed 02/06/15 02/13/15 14:10:10Page 2 of 32 Exhibit C Pg 3 of 33 PLAINTIFF’S COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL Plaintiff GAYLYNN BACON (“Plaintiff”) hereby comes before this Honorable Court and files this Complaint for Damages and Demand for a Jury Trial, respectfully showing the following: I. INTRODUCTION 1. This case involves personal injuries arising from Defendant General Motors, LLC’s (“New GM”) egregious and ongoing failure to disclose, and the affirmative concealment of, a known safety defect in certain General Motors (“GM”) vehicles. Plaintiff brings this Complaint against New GM as the sole Defendant, and asserts claims for relief based on New GM’s liability based on its knowledge, conduct, and breach of its duties toward the purchasers of GM vehicles, as well as its duties as successor of Old GM. This Complaint seeks recovery of damages arising from New GM’s breaches of its independent, non-derivative duties toward Plaintiff. This Complaint also asserts claims against New GM for liability as a successor and mere continuation of the pre-2009 bankruptcy General Motors Corporation (“Old GM”) . 2. This Complaint sets forth those facts relating to Old and New GM’s unprecedented abnegation of basic standards of safety, truthfulness, and accountability, to the detriment of millions of consumers and the public at large, and specifically, Plaintiff. It draws upon an array of sources, including documents GM produced to the National Highway Traffic Safety Administration (“NHTSA”), the House Energy & Commerce Committee, and the results of an internal investigation overseen by Anton R. Valukas (“Valukas Report”). II. PARTIES 3. Plaintiff is a citizen and resident of the State of Louisiana. She was involved in a motor vehicle accident involving a 2004 Oldsmobile Alero (the “Subject Vehicle”) on or about - 2 - 1217073.2 09-50026-regCase 1:15-cv-00918-JMF Doc 13083-3 Filed Document 02/13/15 1 Entered Filed 02/06/15 02/13/15 14:10:10Page 3 of 32 Exhibit C Pg 4 of 33 August 12, 2008, in which she was seriously injured. This accident and Plaintiff’s injuries were proximately caused by the Ignition Switch Defect. 4. New GM is a foreign limited liability company formed under the laws of Delaware with its principal place of business located at 300 Renaissance Center, Detroit, Michigan. The sole member and owner of New GM is General Motors Holding LLC. General Motors Holdings LLC is a Delaware limited liability company with its principal place of business in the State of Michigan. The sole member and owner of General Motors Holdings LLC is General Motors Company. General Motors Company is a Delaware Corporation, which has its principal place of business in the State of Michigan, and is a citizen of the States of Delaware and Michigan. 5. In 2009, Old GM filed for bankruptcy, and sold substantially all of its assets pursuant to a Master Sales and Purchase Agreement (“Agreement”) to New GM. New GM was incorporated in 2009 and, effective on July 10, 2009, acquired substantially all assets and assumed certain liabilities of Old GM through a Section 363 sale under Chapter 11 of the U.S. Bankruptcy Code. 6. As part of the bankruptcy Master Sale and Purchase Agreement, New GM expressly assumed various liabilities for deaths and personal injuries arising from Old GM vehicles, including: [A]ll Liabilities to third parties for death, personal injury, or other injury to Persons or damage to property caused by motor vehicles designed for operation on public roadways or by the component parts of such motor vehicles and, in each case, manufactured, sold or delivered by Seller [Old GM] (collectively, “Product Liabilities”), which arise directly out of accidents, incidents or other distinct and discreet occurrences that happen on or after the Closing Date and arise from such motor vehicles’ operation or performance (for avoidance of doubt, Purchaser [New GM] shall not assume, or become liable - 3 - 1217073.2 09-50026-regCase 1:15-cv-00918-JMF Doc 13083-3 Filed Document 02/13/15 1 Entered Filed 02/06/15 02/13/15 14:10:10Page 4 of 32 Exhibit C Pg 5 of 33 to pay, perform or discharge, any Liability arising or contended to arise by reason of exposure to materials utilized in the assembly or fabrication of motor vehicles manufactured by Seller [Old GM] and delivered prior to the Closing Date, including asbestos, silicates or fluids, regardless of when such alleged exposure occurs); 7. New GM also expressly assumed: [A]ll Liabilities arising under express written warranties of [Old GM] that are specifically identified as warranties and delivered in connection with the sale of new, certified used or pre-owned vehicles or new or remanufactured motor vehicle parts and equipment (including service parts, accessories, engines and transmissions) manufactured or sold by [Old GM] or Purchaser prior to or after the Closing and (B) all obligations under Lemon Laws. 8. Furthermore, New GM expressly assumed the obligation to comply with federal and state certification, reporting, and recall requirements: From and after the Closing, Purchaser [New GM] shall comply with the certification, reporting and recall requirements of the National Traffic and Motor Vehicle Act, the Transportation Recall Enhancement, Accountability and Documentation Act, the Clean Air Act, the California Health and Safety Code, and similar laws, in each case, to the extent applicable in respect of vehicles and vehicle parts manufactured or distributed by [Old GM]. 9. Finally, New GM also expressly assumed “all Liabilities arising out of, relating to, in respect of, or in connection with the use, ownership or sale of the Purchased Assets after the closing.” Those assets included all contracts of Old GM, including its contracts with dealers and service centers. III. JURISDICTION AND VENUE 10. This Court has diversity jurisdiction over this action under 28 U.S.C. § 1332(a) because the amount in controversy for this action exceeds $75,000, and Plaintiff is a citizen of a different state than Defendant. - 4 - 1217073.2 09-50026-regCase 1:15-cv-00918-JMF Doc 13083-3 Filed Document 02/13/15 1 Entered Filed 02/06/15 02/13/15 14:10:10Page 5 of 32 Exhibit C Pg 6 of 33 11. This Court has personal jurisdiction over New GM because it conducts substantial business in this District, and some of the actions giving rise to the complaint took place in this District. 12. Venue is proper in this District under 28 U.S.C. § 1391 because New GM, as a corporate entity, is deemed to reside in any judicial district in which it is subject to personal jurisdiction. Additionally, New GM transacts business within this District, and some of the events establishing the claims arose in this District. 13. Pursuant to this Court’s direction that new plaintiffs can file directly in the MDL without first filing in the district in which they reside, Plaintiff is filing this action as if it had been filed in the judicial district in which they reside. IV. STATEMENT OF FACTS A. Background 14. An auto manufacturer should never make profits more important than safety, and should never conceal defects that exist in its vehicles from customers or the public. New GM Vehicle Safety Chief Jeff Boyer acknowledged that: “Nothing is more important than the safety of our customers in the vehicles they drive.” 15. The first priority of a car manufacturer sould be to ensure that its vehicles are safe, and particularly that its vehicles have operable ignition systems, airbags, power steering, power brakes, seatbelt pretensioners, and other safety features that can prevent or minimize the threat of death or serious bodily harm to the vehicle’s occupants. 16. The Transportation Recall Enhancement, Accountability and Documentation Act (“TREAD Act”), its accompanying regulations, and state statutory and common law require prompt disclosure of serious safety defects known to a manufacturer. If it is determined that the - 5 - 1217073.2 09-50026-regCase 1:15-cv-00918-JMF Doc 13083-3 Filed Document 02/13/15 1 Entered Filed 02/06/15 02/13/15 14:10:10Page 6 of 32 Exhibit C Pg 7 of 33 vehicle is defective, the manufacturer may be required to notify vehicle owners, purchasers, and dealers of the defect, and may be required to remedy the defect. 17. Millions of vehicles designed, manufactured, and sold by Old GM and New GM have a safety defect such that the vehicle’s ignition switch inadvertently moves from the “run” position to the “accessory” or “off” position during ordinary driving conditions, resulting in a loss of power, vehicle speed control, and braking, as well as a failure of the vehicle’s airbags to deploy (the “Ignition Switch Defect”). These vehicles are referred to in this Complaint as “Defective Vehicles.” 18. The Defective Vehicles contain substantially similar ignition switches and cylinders, with the key position of the lock module located low on the steering column, in close proximity to a driver’s knee. The ignition switch systems on these vehicles are prone to fail during ordinary and foreseeable driving situations. 19. Specifically, the ignition switches can inadvertently move from the “run” to the “accessory” or “off” position at any time during normal and proper operation of the Defective Vehicles. The ignition switch is most likely to move when the vehicle is jarred or travels across a bumpy road; if the key chain is heavy; if a driver inadvertently touches the ignition key with his or her knee; or for a host of additional reasons. When the ignition switch fails, the vehicle may suddenly and unexpectedly loses engine power, power steering, and power brakes, and certain safety features are disabled, including the vehicle’s airbags. This leaves occupants vulnerable to crashes, serious injuries, and death. 20. The ignition switch systems at issue are defective in at least three major respects. First, the switches are weak; due to a faulty “detent plunger,” the switch can inadvertently move from the “run” to the “accessory” position. Second, because the ignition - 6 - 1217073.2 09-50026-regCase 1:15-cv-00918-JMF Doc 13083-3 Filed Document 02/13/15 1 Entered Filed 02/06/15 02/13/15 14:10:10Page 7 of 32 Exhibit C Pg 8 of 33 switch is placed low on the steering column, the driver’s knee can easily bump the key (or the hanging fob below the key) and cause the switch to inadvertently move from the “run” to the “accessory” or “off” position. Third, when the ignition switch moves from the “run” to the “accessory” or “off” position, the vehicle’s power is disabled. This also immediately disables the airbags. Thus, when power is lost during ordinary operation of the vehicle, a driver is left without the protection of the airbag system even if he or she is traveling at high speeds. 21. Because of defects in their design, the Ignition Switches installed in the Defective Vehicles are, by their nature, loose and improperly positioned and are susceptible to failure during normal and expected conditions. The ignition module is located in a position in the vehicle that allows a driver to contact the key ring, and inadvertently switch the ignition position. 22. The ignition switch at issue is a simple and inexpensive part, as can be seen in the photographs and measurements from McSwain Engineering, Inc., below: - 7 - 1217073.2 09-50026-regCase 1:15-cv-00918-JMF Doc 13083-3 Filed Document 02/13/15 1 Entered Filed 02/06/15 02/13/15 14:10:10Page 8 of 32 Exhibit C Pg 9 of 33 23. Vehicles with defective ignition switches are therefore unreasonably prone to be involved in accidents, and those accidents are unreasonably likely to result in serious bodily harm or death to the drivers and passengers of the vehicles. 24. Indeed, New GM itself has acknowledged that the defective ignition switches pose an “increas[ed] risk of injury or fatality” and has linked the ignition defect to at least thirteen deaths and over fifty crashes in the vehicles subject to the February recall alone. Ken Feinberg, who was hired by New GM to settle wrongful death claims arising from the ignition switch defects, has already linked the defect to dozens of deaths, and has thousands of death and injury claims under review. The Center for Auto Safety studied collisions in just two vehicle makes, and linked the defect to over 300 accidents. There is every reason to believe that as more information is made public, these numbers will continue to grow. 25. Alarmingly, Old GM knew of the deadly Ignition Switch Defect and its dangerous consequences from at least 2001, but concealed its knowledge from consumers and regulators. New GM did the same, and, incredibly, it was not until 2014 – more than a decade later – that the ignition switch recalls were first announced. 26. In February and March of 2014, New GM, which has assumed the liabilities of Old GM for the conduct at issue in this Complaint, and which has independent and non- derivative duties of candor and care based upon its own knowledge and conduct, issued its first set of recalls of various models due to the defective ignition switch. The recalls encompassed 2.19 million vehicles in the United States and included the following models of cars manufactured by Old GM: 2005-2009 Chevrolet Cobalts; 2006-2009 Pontiac G5s; 2006-2009 Chevrolet HHRs and Pontiac Solstices; 2005-2009 Pontiac Pursuits; 2003-2007 Saturn Ions; and 2007-2009 Saturn Skys. - 8 - 1217073.2 09-50026-regCase 1:15-cv-00918-JMF Doc 13083-3 Filed Document 02/13/15 1 Entered Filed 02/06/15 02/13/15 14:10:10Page 9 of 32 Exhibit C Pg 10 of 33 27. On June 23, 2014, New GM notified NHTSA and consumers that it was issuing a second recall for Defective Vehicles (the “June recall”). Here, New GM recalled 3.14 million vehicles. New GM characterized the June recall as relating to the design of the ignition key with a slot (rather than a hole), which allows the key and the key fob to hang lower down in the vehicle where it is vulnerable to being hit by the driver’s knee. Despite this delineation, this “key slot defect” is substantially identical to the ignition switch defect that gave rise to the earlier recall and creates the same safety risks and dangers. 28. According to documents on NHTSA’s website, 2,349,095 of the vehicles subject to the June recall were made by Old GM. 792,636 vehicles were made and sold by New GM. The Defective Vehicles made by Old GM with the ignition key slot defect include: 2005-2009 Buick Lacrosses; 2006-2009 Buick Lucernes; 2004-2005 Buick Regal LS & GS; 2000-2005 Cadillac Devilles; 2007-2009 Cadillac DTSs; 2006-2009 Chevrolet Impalas; and 2006-2007 Chevrolet Monte Carlos. 29. Like the ignition switch defect that is the subject of the February/March recall, the ignition key slot defect poses a serious and dangerous safety risk because the key in the ignition switch can rotate and consequently cause the ignition to switch from the “on” or “run” position to “off” or “accessory” position. This, in turn, may result in a loss of engine power, stalling, loss of speed control, loss of power steering, loss of power braking, and increase the risk of a crash. Moreover, as with the ignition switch defect, because of this defect, if a crash occurs, the airbags are unlikely to deploy. 30. New GM has tried to characterize the recall of these 3.14 million vehicles as being different than the ignition switch defect in the February/March recall when in reality it is for exactly the same defect, posing the same safety risks. New GM has attempted to distinguish - 9 - 1217073.2 09-50026-regCase 1:15-cv-00918-JMF Doc 13083-3 Filed Document 02/13/15 1 Entered Filed 02/06/15 02/13/15 Page14:10:10 10 of 32 Exhibit C Pg 11 of 33 the ignition key slot defect from the ignition switch defect to provide it with cover and an explanation for why it did not recall these 3.14 million vehicles much earlier, and allow New GM to provide a more limited, cheap and ineffective “fix” in the form of a key with hole (as opposed to a slot). 31. On July 2, 2014 and July 3, 2014, New GM announced it was recalling 7.29 million Defective Vehicles due to “unintended key rotation” (the “July recall”). The vehicles with the unintended key rotation defect were built on the same platform and with defective ignition switches, likely due to weak detent plungers just like the other Defective Vehicles. The Old GM vehicles implicated in the July recall are: 2000-2005 Chevrolet Impalas and Monte Carlos; 1997-2005 Chevrolet Malibus; 1999-2004 Oldsmobile Aleros; 1999-2005 Pontiac Grand Ams and 2000-2004 Pontiac Grand Prixs; certain 2003-2008 Cadillac CTSs; and certain 2004- 2006 Cadillac SRX vehicles. 32. As with the vehicles subject to the June recall, New GM has downplayed the severity of the “unintended key rotation” defect, and its recall offers a similarly cheap and ineffective “fix” in the form of new keys. New GM is not upgrading the ignition switches in these vehicles, altering the placement of the ignition so that it is not placed low on the steering column and is not correcting the algorithm that immediately disables the airbags as soon as the Defective Vehicle’s ignition switch leaves the “run” position. 33. Collectively these three groups of recalls (as well as a yet another very recent recall first posted on the NHTSA website on September 9, 2014 involving unintended ignition key rotation defects and another nearly 47,000 vehicles, including 2008-2009 Pontiac G8s) all relate to defects in the ignition switch system that New GM could and should have remedied years ago. The vehicles in all of these recalls are the “Defective Vehicles.” - 10 - 1217073.2 09-50026-regCase 1:15-cv-00918-JMF Doc 13083-3 Filed Document 02/13/15 1 Entered Filed 02/06/15 02/13/15 Page14:10:10 11 of 32 Exhibit C Pg 12 of 33 34. From at least 2005 to the present, both Old GM and New GM received reports of crashes and injuries that put Old GM and New GM on notice of the serious safety issues presented by its ignition switch system. Given the continuity of engineers, general counsel, and other key personnel from Old GM to New GM, to say nothing of the access to Old GM’s documents, New GM was aware of the ignition switch defects from the very date of its inception pursuant to the July 5, 2009 bankruptcy Sale Order, which became effective on July 11, 2009. 35. Despite the dangerous, life-threatening nature of the ignition switch defects, including how the defects affect critical safety systems, New GM concealed the existence of the defects and failed to remedy the problem. 36. The systematic concealment of known defects was deliberate, as both Old and New GM followed a consistent pattern of endless “investigation” and delay each time they became aware (or aware yet again) of a given defect. In fact, recently revealed documents show that both Old and New GM valued cost-cutting over safety, trained their personnel to never use the word “defect,” “stall,” or other words suggesting that any GM-branded vehicles are defective, routinely chose the cheapest part supplier without regard to safety, and discouraged employees from acting to address safety issues. 37. According to the administrator of NHTSA, Old and New GM worked to hide documents from the government regulator and to keep people within the companies from “connecting the dots” to keep information secret. 38. New GM’s CEO, Mary Barra, has admitted in a video message that: “Something went wrong with our process in this instance, and terrible things happened.” But that admission, and New GM’s attempt to foist the blame on its parts supplier and engineers, lawyers and others whom it has now terminated, are cold comfort for Plaintiff and consumers. - 11 - 1217073.2 09-50026-regCase 1:15-cv-00918-JMF Doc 13083-3 Filed Document 02/13/15 1 Entered Filed 02/06/15 02/13/15 Page14:10:10 12 of 32 Exhibit C Pg 13 of 33 39. But there is more. In the first eight months of 2014, New GM announced at least 60 additional recalls, bringing the total number of recalled vehicles up to 26.5 million. The unprecedented scope of these recalls has completely belied the companies’ claims that they made reliable and safe cars. From its very inception, New GM had the knowledge, the choice, the opportunity, and the responsibility to prevent personal and economic harm by timely and properly recalling the Defective Vehicles and timely and properly correcting the other safety defects. The serious injuries that Plaintiff and other GM customers suffered could have been prevented if GM had timely disclosed the defects in its vehicles and abided by its duties to consumers. This Complaint seeks the redress now available for New GM’s failure to do so. 40. GM has acknowledged through Ken Feinberg that the Ignition Switch Defect has caused at least fifty-one deaths. GM has refused, however, to disclose the identities of those it counts among these fifty-one deaths. Independent safety regulators have recorded 303 deaths associated with only the Saturn Ion and Chevrolet Cobalt models discussed above. The actual number of deaths for all Defective Vehicles is expected to be much higher. 41. The Ignition Switch Defect precludes drivers and owners of the Defective Vehicles, such as Plaintiff, from proper and safe use of their vehicles. This defect reduces vehicle occupant protection, and endangers drivers and other vehicle occupants. 42. No driver or owner of the Defective Vehicles, including Plaintiff, knew, or could reasonably have discovered, the Ignition Switch Defect, prior to it manifesting in a sudden and dangerous failure. 43. Prior to the sale of the Defective Vehicles, Old GM and New GM knew of the Ignition Switch Defect through sources such as pre-release design, manufacturing, and field testing data; in-warranty repair data; early consumer complaints made directly to Old GM, - 12 - 1217073.2 09-50026-regCase 1:15-cv-00918-JMF Doc 13083-3 Filed Document 02/13/15 1 Entered Filed 02/06/15 02/13/15 Page14:10:10 13 of 32 Exhibit C Pg 14 of 33 collected by the National Highway Transportation Safety Administration’s Office of Defect Investigation (“NHTSA ODI”) and/or posted on public online vehicle owner forums; field testing done in response to those complaints; aggregate data from GM dealers; and accident data. Despite this knowledge, Old GM and New GM failed to disclose and actively concealed the Ignition Switch Defect from Plaintiff and the public, and continued to market and advertise the Defective Vehicles as reliable and safe vehicles, which they are not. 44. As a result of New GM’s alleged misconduct, Plaintiff was harmed and suffered actual damages and personal injuries. The Defective Vehicles are unsafe, unfit for their ordinary and intended use, and have manifested, or are at unreasonable risk of manifesting, the Ignition Switch Defect by way of a sudden and dangerous failure that puts them and others at serious risk of injury or death. Drivers and owners of the Defective Vehicles, including Plaintiff, did not receive the benefit of their bargain as purchasers and/or lessees, received vehicles that were of a lesser standard, grade, and quality than represented, and did not receive vehicles that met ordinary and reasonable consumer expectations. Drivers and owners of the Defective Vehicles, including Plaintiff, did not receive vehicles that would reliably operate with reasonable safety, and that would not place drivers and occupants in danger of encountering an ongoing and undisclosed risk of harm, which could have been avoided, as New GM knew but did not disclose, through the use of non-defective ignition parts. B. The Defective Vehicles and New GM’s Successor Liability 45. As used in this Complaint, the “Defective Vehicles” refers to the Old GM and New GM vehicles sold in the United States equipped at the time of sale with ignition switches sharing a common, uniform, and defective design, including the following makes and model years: • Buick Lacrosse — 2005-2009 - 13 - 1217073.2 09-50026-regCase 1:15-cv-00918-JMF Doc 13083-3 Filed Document 02/13/15 1 Entered Filed 02/06/15 02/13/15 Page14:10:10 14 of 32 Exhibit C Pg 15 of 33 • Buick Lucerne — 2006-2011 • Buick Regal LS & GS — 2004-2005 • Cadillac Deville — 2000-2005 • Cadillac CTS — 2003-2014 • Cadillac DTS — 2004-2011 • Cadillac SRX — 2004-2006 • Camaro — 2010-2014 • Chevrolet Cobalt — 2005-2010 • Chevrolet HHR — 2006-2011 • Chevrolet Impala — 2000-2014 • Chevrolet Malibu — 1997-2005 • Chevy Monte Carlo — 2000-2008 • Daewoo G2X — 2007-2009 • Oldsmobile Alero — 1999-2004 • Oldsmobile Intrigue — 1998-2002 • Opel/Vauxhall GT — 2007-2010 • Pontiac G4 —2005-2006 • Pontiac G5 — 2007-2010 • Pontiac Grand Am — 1999-2005 • Pontiac Grand Prix — 2004-2008 • Pontiac Pursuit — 2005-2006 • Pontiac Solstice — 2006-2010 • Saturn Ion — 2003-2007 - 14 - 1217073.2 09-50026-regCase 1:15-cv-00918-JMF Doc 13083-3 Filed Document 02/13/15 1 Entered Filed 02/06/15 02/13/15 Page14:10:10 15 of 32 Exhibit C Pg 16 of 33 • Saturn Sky — 2007-2010 46. Plaintiff’s Subject Vehicle is among the Defective Vehicles listed above. 47. General Motors Corporation was founded on September 16, 1908, in Flint, Michigan, and was incorporated on October 13, 1916, in Delaware. On June 1, 2009, General Motors Corporation (“Old GM”) filed a Chapter 11 bankruptcy petition in the United States Bankruptcy Court for the Southern District of New York.1 On July 5, 2009, that court approved the sale of substantially all of the assets of Old GM to an entity known as General Motors LLC (“New GM”).2 Old GM sold all of its assets to New GM in a transaction finalized on July 10, 2009.3 In that sale, all Old GM brands, inventory, physical assets, management, personnel, vehicles and general business operations were transferred to New GM. New GM acquired the contracts, books, and records of Old GM. New GM acquired all goodwill and intellectual property of Old GM. At no time was the business enterprise of the General Motors Company interrupted, and the New GM brand was continued as the same brand as Old GM.4 New GM is the mere continuation or reincarnation of the same business enterprise as Old GM. 48. New GM acquired all or substantially all of the manufacturing assets of Old GM, and undertook the identical manufacturing operation as Old GM. New GM continued the manufacture, marketing, sale, and warranty of the Old GM brands, including the Chevrolet Cobalt, the Chevrolet HHR, the Buick Allure, the Buick LaCrosse, the Buick Lucerne, the Cadillac Deville, the Cadillac DTS, the Cadillac CTS, the Cadillac SRX, the Chevrolet Impala, the Chevrolet Camaro, the Chevrolet Malibu, and the Chevrolet Monte Carlo. 1 Valukas Report at 1, FN 1 and Valukas Report at 131. 2 Id. 3 Valukas Report at 131-132. 4 Valukas Report at 132, FN 577. - 15 - 1217073.2 09-50026-regCase 1:15-cv-00918-JMF Doc 13083-3 Filed Document 02/13/15 1 Entered Filed 02/06/15 02/13/15 Page14:10:10 16 of 32 Exhibit C Pg 17 of 33 49. Saturn Corporation was established on January 7, 1985 as a subsidiary of Old GM. The Saturn Sky was first manufactured in 2006 for the 2007 model year (“MY”), and the Pontiac Solstice was first manufactured in 2005 for the 2006 MY. Old GM manufactured both of these vehicles at its Wilmington, DE plant, and New GM continued to manufacture, market, and sell these vehicles post-bankruptcy. After attempting to sell the Saturn brand to Penske, New GM announced on September 30, 2009, that it was going to wind down the Saturn brand by October 2010.5 50. Adam Opel AG was founded on January 21, 1862 as a sewing machine manufacturer and produced its first automobiles in 1899. Opel, based in Russelsheim, Hesse, Germany, became a subsidiary of Old GM in 1931. The Opel/Vauxhall GT was introduced as a production model in late 1968. Production of the Opel/Vauxhall GT was shutdown in 1973 only to return 34 years later as a 2007 MY vehicle for GM. The Daewoo G2X was a rebadged version of the Opel GT available in September 2007. Old GM manufactured these vehicles from 2007 until July 28, 2009 at its Wilmington, DE plant, and New GM continued to manufacture, market, and sell these Old GM vehicles post-bankruptcy. New GM announced on July 21, 2014, that Opel Group, a new entity created by Adam Opel AG and New GM, would manage and maintain full responsibility for New GM’s European business, including Cadillac, Chevrolet, and the Opel/Vauxhall brands.6 51. Old GM began production of the Chevrolet Cobalt at its Lordstown Assembly plant in Lordstown, OH, in 2004 for the 2005 MY. New GM continued to manufacture, market, 5 Valukas Report at 19; http://media.gm.com/media/us/en/gm/news.detail.html/content/Pages/news/us/en/ 2009/Jun/0601_PlantClosures.html; http://www.bloomberg.com/apps/news?pid=newsarchive&sid=aioTrH.Mfo0o. 6 http://en.wikipedia.org/wiki/Opel_GT; http://en.wikipedia.org/wiki/Saturn_Sky; http://www.detroitnews.com/ article/20140721/AUTO0103/307210084. - 16 - 1217073.2 09-50026-regCase 1:15-cv-00918-JMF Doc 13083-3 Filed Document 02/13/15 1 Entered Filed 02/06/15 02/13/15 Page14:10:10 17 of 32 Exhibit C Pg 18 of 33 and sell the Cobalt, an Old GM vehicle, post-bankruptcy until New GM discontinued the brand in 2010.7 52. The Chevrolet HHR was manufactured at Old GM’s Ramos Arizpe, Mexico plant for the 2006 MY. New GM continued to manufacture, market, and sell the Chevrolet HHR post-bankruptcy.8 53. Old GM introduced the Pontiac G5/Pursuit in Canada for the 2005 MY and in the U.S. for the 2007 MY. New GM continued to manufacture, market, and sell the Pontiac G5/Pursuit post-bankruptcy.9 54. Old GM began manufacturing the Buick LaCrosse (U.S.) (or Buick Allure in Canada) in September 2004 for the 2005 MY.10 The last vehicle of the first-generation Buick LaCrosse was manufactured on December 23, 2008, at GM’s Oshawa, Ontario plant. The second-generation Buick LaCrosse was unveiled at the North American International Auto Show in Detroit, Michigan in January 2009. New GM continues to manufacture, market, and sell the LaCrosse to this day.11 55. Old GM began production of the Buick Lucerne in 2005 for the 2006 MY.12 New GM continued production of the Buick Lucerne model vehicle until 2011.13 56. Old GM began manufacturing the Cadillac DTS in 2005 for the 2006 MY. In the bankruptcy, New GM acquired the Cadillac brand and continued to manufacture, market, and sell the Cadillac DTS until 2011.14 7 Valukas Report at 18; http://www.cleveland.com/business/index.ssf/2010/06/gm_taking_some _unusual_risks_i.html. 8 Valukas Report at 18; http://www.prlog.org/11024409-chevrolet-discontinues-the-hhr.html; http://www.autofieldguide.com/articles/lookingthe-chevy-hhr. 9 http://www.answers.com/topic/pontiac-g5. 10 Ward’s Automotive Yearbook 2005. Ward’s Communications, Inc. 2005. p. 115. 11 http://www.autoblog.com/2009/01/08/detroit-preview-2010-buick-lacrosse-breaks-cover/. 12 http://www.edmunds.com/buick/lucerne/. 13 http://www.just-auto.com/news/gm-axes-cadillac-dts-and-buick-lucerne_id111499.aspx. - 17 - 1217073.2 09-50026-regCase 1:15-cv-00918-JMF Doc 13083-3 Filed Document 02/13/15 1 Entered Filed 02/06/15 02/13/15 Page14:10:10 18 of 32 Exhibit C Pg 19 of 33 57. The first-generation Cadillac SRX was manufactured and sold by Old GM between 2004 and 2009. New GM debuted the second-generation Cadillac SRX in 2010 and continues to manufacture, market, and sell these vehicles to this day.15 58. Old GM began production of the Cadillac CTS in 2002 for the 2003 MY. Old GM redesigned portions of the Cadillac CTS in 2008, and New GM recently completed another redesign of this model in 2014. 16 New GM continues to manufacture, market, and sell the Cadillac CTS. 59. The Chevrolet Impala has been manufactured, marketed and sold by Old GM since 1958. Old GM manufactured, marketed and sold the eighth-generation Impala from 2000- 2005; followed by the ninth-generation Impala from 2006-2009. New GM continued to manufacture, market, and sell the ninth-generation Chevrolet Impala between 2009 and 2013. New GM performed a redesign in 2013 for the 2014 MY, and continues to manufacture, market, and sell the Chevrolet Impala. 17 60. Old GM began manufacturing and selling the Chevrolet Malibu in 1963 for the 1964 MY. Four generations of Malibu were manufactured, marketed and sold by Old GM between 1964 and 1983, when the Malibu was discontinued. Old GM brought back the Malibu make in 1996 for the 1997 MY. With MY 2004, Old GM redesigned the Malibu, manufacturing, marketing, and selling the second-generation Malibu until 2008. The third-generation Chevrolet Malibu was manufactured, marketed, and sold by Old GM from 2008 to 2009. New GM continued to manufacture, market, and sell the third-generation Chevrolet Malibu from July 10, Footnote continued from previous page 14 http://www.edmunds.com/cadillac/dts/. 15 http://www.edmunds.com/cadillac/srx/. 16 http://www.edmunds.com/cadillac/cts/. 17 http://www.edmunds.com/chevrolet/impala/. - 18 - 1217073.2 09-50026-regCase 1:15-cv-00918-JMF Doc 13083-3 Filed Document 02/13/15 1 Entered Filed 02/06/15 02/13/15 Page14:10:10 19 of 32 Exhibit C Pg 20 of 33 2009 through 2012. New GM continues to manufacture, market, and sell the current version of the Malibu as redesigned for MY 2013.18 61. Old GM manufactured, marketed, and sold the Chevrolet Camaro model from its inception in the late 1960s until 2002, when the model was discontinued. The Chevrolet Camaro returned to the New GM lineup in 2009 for the 2010 MY, and continues to be manufactured, marketed and sold by New GM to this day.19 62. Old GM manufactured, marketed, and sold the Pontiac Grand Am model from its inception in the early 1970s until 2005, when the model was discontinued.20 Although the Pontiac Grand Am was discontinued after 2005, New GM assumed liability to third parties for all personal injuries and deaths arising from Pontiac Grand Am accidents after July 10, 2009 as part of the July 2009 bankruptcy sale. 63. Old GM and New GM promoted these and other Defective Vehicles as safe and reliable in numerous marketing and advertising materials. 64. No reasonable consumer expects that the vehicle that he or she purchases or leases contains a known but undisclosed design defect that poses a safety risk at the time or purchase or lease. C. The Subject Incident 65. Plaintiff hereby incorporates by reference each and every paragraph set forth in this complaint as if fully copied and set forth at length herein. 66. On or about August 12, 2008, the Subject Vehicle experienced a loss of vehicular control, sudden unintended shutdown, loss of power steering, loss of power brakes, and/or the 18 http://wot.motortrend.com/a-quick-history-of-the-chevy-malibu-125595.html; http://www.edmunds.com/ chevrolet/malibu/. 19 http://www.edmunds.com/chevrolet/camaro/. 20 http://www.edmunds.com/pontiac/grand-am/. - 19 - 1217073.2 09-50026-regCase 1:15-cv-00918-JMF Doc 13083-3 Filed Document 02/13/15 1 Entered Filed 02/06/15 02/13/15 Page14:10:10 20 of 32 Exhibit C Pg 21 of 33 non-deployment of airbags in a collision arising from an Ignition Switch Defect in the Subject Vehicle resulting in Plaintiff’s serious personal injuries. 67. To Plaintiff’s knowledge and understanding, the Subject Vehicle had not been substantially modified or changed in any material way from its initial condition as designed, manufactured, marketed, and sold by GM, and Plaintiff was unaware of any problems or concerns with the Subject Vehicle or its components prior to the incident described herein. 68. The Subject Vehicle’s loss of vehicular control, sudden unintended shutdown, loss of power steering, loss of power brakes, and/or the non-deployment of airbags upon impact during the Subject Incident, among other failures, was caused by the Ignition Switch Defect. 69. The Ignition Switch Defect caused Plaintiff to suffer significant injuries that could have been mitigated or avoided altogether if the Defective Ignition Switch in the Subject Vehicle had not failed. V. OLD GM AND NEW GM FRAUDULENTLY CONCEALED THE DEFECT IN THEIR VEHICLES, THEREBY TOLLING ALL APPLICABLE STATUTES OF LIMITATIONS 70. All applicable statutes of limitation have been tolled by Old and New GM’s knowing, ongoing and active fraudulent concealment and denial of the facts alleged herein. Plaintiff did not discover, and did not know of facts that would have caused a reasonable person to suspect, that Old and New GM did not report information within their knowledge to federal authorities (including NHTSA), their dealerships, or consumers. Nor would a reasonable and diligent investigation have disclosed that Old or New GM had information in their possession about the existence and dangerousness of the defects, or that each opted to conceal that information until shortly before this action was filed. 71. All applicable statutes of limitation also have been tolled by operation of the discovery rule. Specifically, Plaintiff could not have discovered, through the exercise of - 20 - 1217073.2 09-50026-regCase 1:15-cv-00918-JMF Doc 13083-3 Filed Document 02/13/15 1 Entered Filed 02/06/15 02/13/15 Page14:10:10 21 of 32 Exhibit C Pg 22 of 33 reasonable diligence, that the Subject Vehicle were defective within the time period of any applicable statutes of limitation. 72. Instead of disclosing the myriad safety defects and disregard of safety of which it was aware, New GM falsely represented that its vehicles were safe, reliable, and of high quality, and that it was a reputable manufacturer that stood behind GM-branded vehicles after they were sold. 73. New GM has been, since its inception, under a continuous duty to disclose to Plaintiff the true character, quality, and nature of the Defective Vehicles, including the Subject Vehicle. Instead, New GM has consistently, knowingly, affirmatively, and actively concealed the true nature, quality, and character of the Defective Vehicles from consumers, including Plaintiff. 74. Based on the foregoing, New GM is estopped from relying on any statutes of limitations in defense of this action as to claims. 75. Overall, regardless of whether it was New GM or Old GM that manufactured or sold a particular Defective Vehicle, New GM is responsible for its own actions with respect to all the Defective Vehicles, and the resulting harm to Plaintiff that occurred as the result of GM’s acts and omissions. Simply put, GM was aware of serious safety defects, and it also knew that Defective Vehicle owners were unaware of the defect, and it chose both to conceal these defects, and to forgo or delay any action to correct them. Under these circumstances, New GM had the clear duty to disclose and not conceal the ignition switch defects to Plaintiff and consumers— regardless of when they acquired the Defective Vehicles. 76. New GM’s obligations stem from several different sources, including, but not limited to: (i) the obligations it explicitly assumed under the TREAD Act to promptly report any - 21 - 1217073.2 09-50026-regCase 1:15-cv-00918-JMF Doc 13083-3 Filed Document 02/13/15 1 Entered Filed 02/06/15 02/13/15 Page14:10:10 22 of 32 Exhibit C Pg 23 of 33 safety defect to Defective Vehicle owners and to NHTSA so that appropriate remedial action could occur; (ii) the duty it had under the law of fraudulent concealment; (iii) the duty it had under State consumer protection and other laws; and (iv) the general legal principle embodied in § 324A of the Restatement (Second) of Torts, (“Liability To Third Person For Negligent Performance Of Undertaking”). 77. In acquiring Old GM, New GM expressly assumed the obligations to make all required disclosures under the TREAD Act with respect to all the Defective Vehicles. 78. Under the TREAD Act, if it is determined that vehicle has a safety defect, the manufacturer must promptly notify vehicle owners, purchasers and dealers of the defect, and may be ordered to remedy the defect. 49 U.S.C. § 30118(b)(2)(A) & (B). 79. Under the TREAD Act, manufacturers must also file a report with NHTSA within five working days of discovering “a defect in a vehicle or item of equipment has been determined to be safety related, or a noncompliance with a motor vehicle safety standard has been determined to exist.” 49 C.F.R. § 573.6(a) & (b). At a minimum, the report to NHTSA must include: the manufacturer’s name; the identification of the vehicles or equipment containing the defect, including the make, line, model year and years of manufacturing; a description of the basis for determining the recall population; how those vehicles differ from similar vehicles that the manufacturer excluded from the recall; and a description of the defect. 49 C.F.R. § 276.6(b), (c)(1), (c)(2), & (c)(5). 80. The manufacturer must also promptly inform NHTSA regarding: the total number of vehicles or equipment potentially containing the defect; the percentage of vehicles estimated to contain the defect; a chronology of all principal events that were the basis for the determination that the defect related to motor vehicle safety, including a summary of all warranty - 22 - 1217073.2 09-50026-regCase 1:15-cv-00918-JMF Doc 13083-3 Filed Document 02/13/15 1 Entered Filed 02/06/15 02/13/15 Page14:10:10 23 of 32 Exhibit C Pg 24 of 33 claims, field or service reports, and other information, with its dates of receipt; and a description of the plan to remedy the defect. 49 C.F.R. § 276.6(b) & (c). 81. It cannot be disputed that New GM assumed a duty to all Defective Vehicle owners under the TREAD Act, and that it violated this duty. 82. Under § 324A of the Restatement, an entity that undertakes to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability for harm to the third person resulting from the failure to exercise reasonable care to protect the undertaking if the “failure to establish reasonable care increases the risk of such harm . . . .” 83. Restatement § 324A applies to an undertaking which is purely gratuitous, and it applies with even greater force here, where New GM is receiving substantial remuneration for its undertaking in relation to its dealerships’ service centers. New GM provides parts for the Defective Vehicles as they are serviced at its dealerships, and receives substantial revenue from dealerships relating to the servicing of Defective Vehicles. It also receives an additional benefit in that many of the people who own these vehicles will eventually sell or trade in their old vehicles for new ones. Consumers using New GM service centers and buying New GM replacement parts necessarily rely upon New GM to advise its dealerships of defects, notify its dealerships of safety related issues, provide its dealerships with accurate and up to date information and enable them to remedy defects. New GM’s failure to carry out these obligations has increased the risk of harm to owners of Defective Vehicles, who regularly have their vehicles inspected and serviced at New GM dealerships and rely upon representations that the vehicles are safe and free of defects. - 23 - 1217073.2 09-50026-regCase 1:15-cv-00918-JMF Doc 13083-3 Filed Document 02/13/15 1 Entered Filed 02/06/15 02/13/15 Page14:10:10 24 of 32 Exhibit C Pg 25 of 33 84. New GM’s dealerships pass along GM replacement parts, and they also rely on New GM’s expertise regarding how the vehicles should be maintained, and what conditions are necessary for the dealer to conclude that the vehicles are in proper working order at the time they are inspected, serviced and released back to the owner. The dealerships rely on New GM’s assurances of safety, that New GM will tell them about safety related problems that come to New GM’s attention, and that New GM will pass along knowledge of defects and how to address them. Dealers servicing the Defective Vehicles rely on New GM’s representations that the vehicles and their component parts and safety features will function correctly if certain conditions are met when the vehicles are inspected and serviced, as do the consumers who go to a New GM dealership for repairs. New GM’s breach of its obligations to its dealerships has resulted in harm to Plaintiff and other consumers. VI. CLAIMS FOR RELIEF A. STRICT LIABILITY 85. Plaintiff hereby incorporates by reference each and every paragraph set forth in this Complaint as if fully copied and set forth at length herein. 86. Old GM and New GM designed, manufactured, and/or sold the Defective Vehicles, including the Subject Vehicle, with unreasonably dangerous design, manufacturing, and/or marketing defects, as set forth herein. 87. Design Defect – Old GM and New GM designed, manufactured, and/or sold the Subject Vehicle, with one or more design defects, more particularly set forth in the preceding paragraphs in this Complaint, including an Ignition Switch Defect that prevented the vehicle’s airbag from deploying in the event of an impact. Safer alternative designs existed at the time of production of the Subject Vehicle that would have prevented or significantly reduced the above risks without substantially impairing the vehicle’s utility. These safer alternative designs were - 24 - 1217073.2 09-50026-regCase 1:15-cv-00918-JMF Doc 13083-3 Filed Document 02/13/15 1 Entered Filed 02/06/15 02/13/15 Page14:10:10 25 of 32 Exhibit C Pg 26 of 33 economically and technologically feasible, by the application of existing or reasonably achievable scientific knowledge, at the time that the Subject Vehicle left control of Old GM, and by extension, New GM. 88. Manufacturing Defect – Old GM and New GM designed, manufactured, and/or sold the Subject Vehicle, with one or more manufacturing defects, more particularly set forth above. The Subject Vehicle manufactured by Old GM and New GM deviates, in its construction or quality, from the specifications or planned output in a manner that renders the automobiles unreasonably dangerous. 89. Marketing Defect and Failure to Warn – Old GM and New GM designed, manufactured, and/or sold the Subject Vehicle with one or more marketing defects: a. There was an unreasonable risk in the intended or reasonably foreseeable use of such automobile in that the above defect prevents the vehicle’s airbag from being deployed, among other dangerous conditions, causing physical injury and death; b. Old GM and New GM knew, foresaw, or should have known and foreseen the above risk; c. Old GM and New GM failed to adequately warn Plaintiff of the above risks, failed to adequately instruct Plaintiff how to avoid the above danger, or both. 90. Unreasonably Dangerous – The manufacturing defects, marketing defects, or both, rendered the Subject Vehicle unreasonably dangerous by making the automobile dangerous to an extent beyond that which would be contemplated by the ordinary consumer with the knowledge common to the community as to its characteristics. 91. The design defects rendered the Subject Vehicle unreasonably dangerous as designed, considering the utility of the automobile and the risks involved in its use. - 25 - 1217073.2 09-50026-regCase 1:15-cv-00918-JMF Doc 13083-3 Filed Document 02/13/15 1 Entered Filed 02/06/15 02/13/15 Page14:10:10 26 of 32 Exhibit C Pg 27 of 33 92. The design, manufacturing, and/or marketing defects, or any of them, were producing causes of Plaintiff’s injuries and damages, as more particularly set forth above. 93. It was entirely foreseeable to, and well-known by, Old GM and New GM that incidents involving its automobiles, such as occurred herein, would on occasion take place during the normal and ordinary use of said automobiles. 94. The Subject Vehicle was defective and unreasonably dangerous in that it contained the Ignition Switch Defect that posed several safety hazards, including, but not limited to, the prevention of vehicle’s airbag from deploying upon an impact. 95. The Subject Vehicle was in this defective condition at the time it left the possession or control of Old GM and New GM. 96. The Subject Vehicle reached Plaintiff without substantial change to the condition of the Ignition Switch. 97. Old GM and New GM designed, manufactured, marketed, distributed, and sold the Subject Vehicle to be unreasonably dangerous and defective within the meaning of Section 402A Restatement (Second) Torts in that the Subject Vehicle was unreasonably dangerous as designed, marketed, manufactured, or any of them. The Subject Vehicles contained an Ignition Switch that was defective, inferior and inadequately designed, marketed and manufactured. 98. The foregoing acts and/or omissions of Old GM and New GM were a producing and/or proximate cause of the Plaintiff’s damages. B. NEGLIGENCE 99. Plaintiff hereby incorporates by reference each and every paragraph set forth in this Complaint as if fully copied and set forth at length herein. 100. Old GM and New GM were negligent in designing, manufacturing, and/or selling the Subject Vehicle, with one or more design defects, more particularly set forth above, - 26 - 1217073.2 09-50026-regCase 1:15-cv-00918-JMF Doc 13083-3 Filed Document 02/13/15 1 Entered Filed 02/06/15 02/13/15 Page14:10:10 27 of 32 Exhibit C Pg 28 of 33 including the Ignition Switch Defect that prevented the vehicle’s airbag from deploying in the event of an impact. 101. Old GM and New GM owed Plaintiff a duty to exercise ordinary care in designing, manufacturing, marketing, testing, selling and distributing the automobiles in question; and to discover dangerous propensities of its product. Old GM and New GM failed to exercise ordinary care in designing, manufacturing, marketing, testing, selling and distributing the Subject Vehicle and the Defective Vehicles in question. 102. Old GM and New GM breached their duties to Plaintiff by designing, manufacturing, marketing, testing, selling and distributing the Subject Vehicle with a latent dangerous defect in the Ignition Switch and/or by failing to warn of the defects and/or by failing to adopt a safer, practical, feasible or otherwise reasonable alternative design that could have then been reasonably adopted to prevent or substantially reduce the risk of harm without substantially impairing the usefulness, practicality, or desirability of the Subject Vehicle. C. FRAUDULENT CONCEALMENT 103. Plaintiff hereby incorporates by reference each and every paragraph set forth in this Complaint as if fully copied and set forth at length herein. 104. Old and New GM each concealed and suppressed material facts concerning the Subject Vehicle. 105. As described above, Old GM and New GM each made material omissions and affirmative misrepresentations regarding the Subject Vehicle. 106. Old GM and New GM each knew these representations were false when made. 107. The Subject Vehicle was, in fact, defective, unsafe and unreliable, because the vehicle was subject to sudden unintended shutdown, with the attendant loss of power steering, power brakes, and the non-deployment of airbags in the event of a collision. - 27 - 1217073.2 09-50026-regCase 1:15-cv-00918-JMF Doc 13083-3 Filed Document 02/13/15 1 Entered Filed 02/06/15 02/13/15 Page14:10:10 28 of 32 Exhibit C Pg 29 of 33 108. Old GM and New GM had a duty to timely disclose these safety issues to Plaintiff, the public, and NHTSA, but failed to do so. 109. Old GM and New GM each had a duty to disclose that these vehicles were defective, unsafe and unreliable in that the vehicles were subject to sudden unintended shutdown, with the attendant loss of power steering, power brakes, and the non-deployment of airbags in the event of a collision, because Plaintiff relied on Old GM’s representations that the vehicle she was driving was safe and free from defects. 110. The aforementioned concealment was material, because if it had been disclosed Plaintiff would not have driven or retained the Subject Vehicle. 111. The aforementioned representations were also material because they were facts that would typically be relied on by a person driving or retaining the Subject Vehicle. Old GM and New GM each knew or recklessly disregarded that their representations were false because they knew that people had died as the result of the vehicles’ defective ignition switch systems. Old GM and New GM each intentionally made the false statements in order to sell vehicles and avoid the expense and public relations nightmare of a recall. 112. Plaintiff relied on the Old GM and New GM reputation – along with their failure to disclose the ignition switch system problems and the Companies’ affirmative assurances that their vehicles were safe and reliable and other similar false statements – in driving and retaining the Subject Vehicle. 113. However, Old and New GM each concealed and suppressed material facts concerning the culture of Old and New GM – a culture that emphasized cost-cutting, avoidance of dealing with safety issues, and a shoddy design process. - 28 - 1217073.2 09-50026-regCase 1:15-cv-00918-JMF Doc 13083-3 Filed Document 02/13/15 1 Entered Filed 02/06/15 02/13/15 Page14:10:10 29 of 32 Exhibit C Pg 30 of 33 114. Further, Old and then New GM each had a duty to disclose the true facts about the Defective Vehicles because they were known and/or accessible only to Old and then New GM who had superior knowledge and access to the facts, and the facts were not known to or reasonably discoverable by Plaintiff. As stated above, these omitted and concealed facts were material because they directly impact the safety, reliability and value of the Defective Vehicles. Whether a manufacturer’s products are safe and reliable, and whether that manufacturer stands behind its products, is of material concern to a reasonable consumer. VII. DAMAGES 115. Plaintiff hereby incorporates by reference each and every paragraph set forth in this complaint as if fully copied and set forth at length herein. 116. Because Plaintiff’s damages was directly and proximately caused by Defendants’ conduct, Plaintiff is entitled to all reasonable and proper compensation allowed by law, including but not limited to: a. past and future medical expenses and charges; b. past and future physical pain and mental anguish; c. past and future physical impairment; d. past and future disfigurement; and e. past lost wages and future lost wage-earning capacity. 117. Plaintiff seeks actual and punitive damages to be awarded by the jury in an amount in excess of the minimum jurisdictional limits of this Court. VIII. PUNITIVE DAMAGES 118. Plaintiff hereby incorporates by reference each and every paragraph set forth in this Complaint as if fully copied and set forth at length herein. - 29 - 1217073.2 09-50026-regCase 1:15-cv-00918-JMF Doc 13083-3 Filed Document 02/13/15 1 Entered Filed 02/06/15 02/13/15 Page14:10:10 30 of 32 Exhibit C Pg 31 of 33 119. Plaintiff would further show that the clear and convincing evidence in this case will show that New GM and Old GM consciously or deliberately engaged in oppression, fraud, wantonness, and/or malice in concealing the defect in the Subject Vehicle and failing to recall the vehicle in a timely manner. New GM and Old GM had actual, subjective awareness of the risk involved, but nevertheless proceeded with indifference to the rights, safety, or welfare of others, including the Plaintiff. Therefore, punitive damages are sought and should be assessed against Defendant. IX. PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests that this Court enter a judgment against New GM and in favor of Plaintiff, and grant the following relief: A. Award Plaintiff actual, compensatory, and/or statutory damages, according to proof; B. Award Plaintiff punitive and exemplary damages in an amount sufficient to punish New GM for its misconduct and deter the repetition of such conduct by New GM or others; C. Award Plaintiff her reasonable attorneys’ fees, costs, and pre-judgment and post- judgment interest; and D. Award Plaintiff such other and further relief as this Court may deem proper, just, and equitable. - 30 - 1217073.2 09-50026-regCase 1:15-cv-00918-JMF Doc 13083-3 Filed Document 02/13/15 1 Entered Filed 02/06/15 02/13/15 Page14:10:10 31 of 32 Exhibit C Pg 32 of 33 Dated: February 6, 2015 Respectfully submitted, Annika K. Martin (AM 2972) [email protected] LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 250 Hudson Street, 8th Floor New York, NY 10013-1413 Telephone: (212) 355-9500 Facsimile: (212) 355-9592 Elizabeth J. Cabraser [email protected] Todd A. Walburg [email protected] Phong-Chau G. Nguyen [email protected] Kevin R. Budner [email protected] LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 Attorneys for Plaintiff - 31 - 1217073.2 09-50026-regCase 1:15-cv-00918-JMF Doc 13083-3 Filed Document 02/13/15 1 Entered Filed 02/06/15 02/13/15 Page14:10:10 32 of 32 Exhibit C Pg 33 of 33 JURY TRIAL DEMAND Plaintiff hereby requests a trial by jury on all claims so triable. Dated: FeQruary 6, 2015 Respectfully.submitted, Annika K. Martin (AM 2972) [email protected] LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 250 Hudson Street, 8th Floor New York, NY 10013-1413 Telephone: (212) 355-9500 Facsimile: (212) 355-9592 Elizabeth J. Cabraser [email protected] Todd A. Walburg [email protected] Phong-Chau G. Nguyen [email protected] Kevin R. Budner [email protected] LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 · Attorneys for Plaintiff - 32 - 1217073.2