Fixed Ops Journal - October 2017 - 8

FIXED OPS JOURNAL

LEGAL LANE
 Text messages to service
customers lead to lawsuit
A Florida dealership's use of automated text
messages to reach service customers has
landed the store in federal court.
A proposed class-action lawsuit accuses
Lokey Volkswagen in Clearwater of violating
the Telephone Consumer Protection Act by
sending thousands of text messages about
open recalls to potential customers this year.
It's one of a growing number of suits nationally that accuse dealerships of illegally using
robo-calls and robo-texts to recruit service
and sales customers.
The federal law restricts the use of automatic
dialing systems, text messages, prerecorded
voice messages and faxes, and requires solicitors to honor the national Do Not Call Registry. Violators face potential damages of $500
to $1,500 per violation.
The dealership contracted with Recall Masters Inc. to obtain names and cellphone numbers of prospective service customers whose
vehicles had been recalled but not repaired,
the suit contends. Recall Masters, which was
not sued, also allegedly provided the makes,
models and years of their vehicles.
The texts encouraged the recipients, who
had no prior relation with Lokey Volkswagen
and didn't authorize such calls, to schedule
service appointments, according to the suit
filed by lead plaintiff April Gillmore, who
owns a 2003 Jetta.
Her lawyer, Ari Scharg of Chicago, said he
doesn't know how many other people received such texts. He added that Gillmore
would have had to pay to have her car serviced because the recall was more than 10
years old.
According to the suit, a Toyota dealership
that was a Recall Masters client made
$307,194 in warranty revenue and $77,321 in
customer-pay revenue after four months in a
similar program and sold an additional 81 vehicles.
The suit seeks damages, attorney fees and
an injunction against sending unsolicited text
messages without consumers' consent.
The dealership didn't respond to requests
for comment.

 Lawsuit: Tech's failure
to torque nuts led to crash
A service technician's failure to torque lug
nuts properly during a routine tire rotation on

PAGE 8

OCTOBER 2017

a new 2016 Toyota Avalon caused a wheel to
"catastrophically separate" and made the car
"uncontrollable," leading to a serious accident,
according to a lawsuit against a Florida dealership, its service manager and the technician.
The suit claims that the car's owner, Steven
Cataldo, suffered permanent injuries from the
crash and that his Avalon sustained more than
$14,000 in damage.
In court papers, the dealership, Coggin Toyota at the Avenues in Jacksonville, and its employees deny liability. A spokesman for Asbury
Automotive Group, which owns the store, said
in a statement: "We disagree with the allegations made in the complaint and look forward
to a successful resolution of the matter."
Cataldo's Avalon had 5,386 miles on the
odometer when he brought it to Coggin Toyota in August 2016 for its first scheduled complimentary maintenance, according to the
negligence suit filed in Florida's 4th Judicial
Circuit Court.
After the rotation, the front right wheel's "nuts
were loose and were not tightened using a calibrated torque wrench" as the owner's manual
instructs, the lawsuit alleges. Service Manager
Ruben Simo failed to inspect the car "to ensure
that the work had been done in accordance
with Toyota's specifications," the suit adds.
The accident occurred on an interstate highway after Cataldo had driven about 20 miles
from the dealership.
Plaintiff lawyer Barry Newman of Jacksonville said the technician named in the suit,
John Lauderbaugh III, no longer works at
Coggin Toyota.
"They should have stood behind their service," Newman said of the dealership. "They
didn't stand behind their work, that's for sure."

 Store settles fired parts
worker's harassment suit
A Chevrolet dealership in Seneca Falls, N.Y.,
has settled a lawsuit filed by a fired parts clerk
that alleged sexual harassment, a hostile work
environment and retaliation.
The settlement came in September, about
two weeks after a judge ruled that Christopher
Welch could proceed with most of his claims
against Bill Cram Chevrolet, its parts department manager and its owner.
Public documents filed in federal court in
Rochester, N.Y., include no details of the terms
of the agreement.
Welch was hired as a parts sales representative, began work June 9, 2014, and was fired

July 3, 2014, according to U.S. District Judge
Michael Telesca.
Welch asserted that the parts manager repeatedly groped his buttocks, touched his
shoulder "like he was giving a back massage"
and rubbed his genitals against him. When
Welch asked him to stop, the manager threatened to fire him, the suit contends.
It also alleges that the manager made sexual
comments about female customers, co-workers, vendors and the dealer principal, Amy
Cram. Welch was fired a day after he complained to the dealer about the manager's behavior, Telesca said.
Bill Cram Chevrolet countered that it discharged Welch "based solely on his inability
to do the work he was hired to do." The dealership acknowledged it never had warned or
disciplined him for poor performance before
the firing.
It also said Welch never had filed a complaint with the general manager under the
store's harassment policy.
Welch's lawyer, Abraham Melamed of New
York City, declined to comment.

 Fired tech not entitled
to severance, court rules
A dealership service technician who was
fired for falsely reporting that the brake pads
of a car needed replacement isn't entitled to
termination and severance pay, a Canadian
judge has ruled.
Ontario Superior Court Justice Mario Faieta
rejected a claim against Mercedes-Benz Burlington by Peter Cummings, who had worked
at the dealership for more than nine years before his dismissal in 2015.
Cummings intentionally misrepresented to
a service adviser that a brake job was needed
although he hadn't conducted a full inspection or removed the wheels, according to the
decision in the spring.
"The evidence makes it clear that Cummings' actions were driven by greed," Faieta
wrote, because Cummings "had completed
two unprofitable recall services that same
day" and wanted "to proceed with a lucrative
brake replacement service."
That job usually took only one and a half
hours to complete, although customers were
billed for four hours of labor, the judge said.
Cummings found a technician's job at another dealership a few weeks after the firing,
the decision noted.
- Eric Freedman | foj@autonews.com

Table of Contents for the Digital Edition of Fixed Ops Journal - October 2017