W.Va. lawsuit targets Toyota
Federal class action filed in Charleston says massive recall not big enough
By Andrew Clevenger

CHARLESTON, W.Va. -- Toyota's massive recall this month of millions of vehicles doesn't include every car that might have a faulty electronic throttle system that might cause unwanted acceleration, according to a class-action lawsuit filed in federal court in Charleston a couple of months ago.

On Tuesday, Toyota Motor Corp. announced that it would stop new sales of certain models, including such top sellers such as the Camry, Avalon, RAV4 and Tundra. Worldwide, the recall and sales freeze is expected to include as many as 9 million vehicles.
In the United States, the recall includes eight models, and goes back as far as 2005, and does not include any cars made by the automaker's Lexus division.

The Charleston lawsuit, filed in November, names 13 models that have an electronic throttle-control system, or ETCS, which allegedly has "a dangerous propensity to suddenly accelerate without driver input and against the intentions of the driver." And the time frame extends as far back as 2002 for Camrys, and 1998 for Lexuses.

Moreover, when reports of incidents caused by unwanted acceleration led to an investigation by a federal agency in 2004, the information provided by Toyota officials was limited in scope so as to exclude incidents that lasted longer than one second or where the driver couldn't stop the unwanted surge by applying the brake, according to the lawsuit.

"Toyota, through [Toyota Motor North America], thus deceptively concealed from [the National Highway Traffic Safety Administration], as well as from the news media and consumer safety groups that monitor NHTSA safety defect investigations, an entire universe of potentially relevant customer complaints," the lawsuit states.

Toyota has recalled the 2009-10 RAV4 crossover, the 2009-10 Corolla, the 2009-10 Matrix hatchback, the 2005-10 Avalon, the 2007-10 Camry, the 2010 Highlander crossover, the 2007-10 Tundra pickup and the 2008-10 Sequoia SUV.

In addition to those, the lawsuit alleges, several other models and years are at risk: 2007-08 FJ Cruisers, 2003-08 Tacoma pickups, 2002-09 Camrys, 2000-09 Tundra pickups, 2001-09 4Runner SUVs, 2001-09 Land Cruisers, 2005-09 RAV4s, 2001-09 Sequoias, 2004-09 Siennas, 2005-09 Corollas, and 2004-09 Highlanders. "Lexus models" from 1998 to 2009 also are listed.

The lawsuit names Toyota Motor Corp., based in Japan, as well as its North America and West Virginia subsidiaries, as defendants.

Toyota did not respond to multiple requests for comment on Friday.



Horrific crashes

In August, an off-duty California Highway Patrol officer and three members of his family, including his wife and daughter, were killed when a Lexus on loan from a dealer accelerated out of control outside San Diego. According to the recording of a 911 call made from the car, it had no brakes as it reached speeds of more than 100 mph before coming to rest in a dry riverbed and bursting into flames.

In the aftermath, authorities suggested that a floor mat lodged under the gas pedal might have been to blame. On Sept. 29, Toyota issued a consumer safety advisory, asking owners of certain models to remove their driver's side floor mats until it could develop a remedy.

But more than a year earlier, a Flint, Mich., woman was driving a 2005 Camry to a neighborhood grocery store when it suddenly sped up without warning, according to a wrongful-death lawsuit filed in Genesee County Circuit Court.

"The vehicle accelerated from an intended speed of less than 25 mph to a speed of approximately 80 mph, despite Guadalupe Alberto's having vigorously and desperately applied her brakes, and traveled at that high speed for approximately 1/4 of a mile, collided with a tree, went airborne, and then collided with another tree," the lawsuit states.

The floor mats had been removed from the car before the incident occurred, the lawsuit maintains.

Charleston lawyer Ben Bailey and several other lawyers represent the plaintiffs in the West Virginia class action and the Alberto case in Michigan.

"We filed these lawsuits several months ago because we think there is a danger to the public that isn't fully understood," he said. "We're concerned about the absence of a failsafe, and we know from our case in Michigan that floor mats are not the problem."

With Toyota's woes seemingly multiplying by the day, you knew it was just a matter of time before the lawyers arrived on scene. Cue two law firms, Parker Waichman Alonso and the Becnel Law Firm, that are joining forces in a bid to sue Toyota's pants off.

The suit hopes to attain class action status and is "intended to benefit all residents of the United States who purchased a Toyota vehicle of model years 2005, 2006, 2007, 2008, 2009, and/or 2010 that is subject to the recalls." How many cars is that? We don't have a total off the top of our head, but considering the Camry has been the best selling car in the U.S. for all six of those years, and the Corolla has been number three or four over the course of that same time frame, we'll go ahead and say the answer is a staggeringly large number.

But hang on one minute: Since all the affected cars have been recalled by Toyota and will (eventually) be repaired, what could the two law firms possibly be suing ToMoCo for? Away we go:

[Parker Waichman Alonso] and the [Becnel Law Firm allege] that, as a result of these recalls, Toyota owners lost the use of their vehicles, and sustained, among things, economic losses and severe emotional distress. The complaint charges Toyota with breach of implied warranty and negligence, and seeks compensatory, punitive and exemplary damages for the Class, as well as equitable and declaratory relief. It also asks the Court to enjoin Toyota from implementing any fixes in the accelerator pedals of the subject vehicles without approval from the NHTSA.

The National Highway Traffic Safety Administration, the federal agency tasked with overseeing car safety, did launch an investigation into unintended acceleration incidents in 2004, but after discussing the issue with senior officials at Toyota Motor North America, at least one of whom used to work at the NHTSA, the agency limited the scope of its investigation.