Fixed Ops Journal - April 2018 - F8

FIXED OPS JOURNAL

LEGAL LANE
Ford store hit with big
verdict for not properly
recommending repairs
A dealership's failure to advise a customer to
replace worn ball joints on a 2004 Ford F-250
Super Duty pickup proved a costly omission
- nearly $7.5 million awarded by a jury.
The California Court of Appeal rejected a
challenge by the dealership, Folsom Lake
Ford, after the verdict. The store had acquired
the truck at auction, sold it to a customer who
returned it after multiple steering problems,
and then resold it.
When the new owner brought the truck in
with a steering complaint, a service technician determined that all four ball joints were
worn. But the tech didn't document the degree of wear as required by the California Bureau of Automotive Repair or write his recommendation for replacement on the invoice,
the court decision said.
The court found no evidence that the service
adviser who worked with the owner communicated the problem, as regulations mandate.
He said only that the problems were "normal"
for a truck equipped with a lift kit and oversized wheels.
The owner loaned the truck to Robert Dunlap, who was driving it to tow an Econoline
van when its right front tire blew out at 65 to 70
mph, the steering wheel locked, and it rolled
over 2¼ times. He was permanently injured.
Although the insurers had the F-250 destroyed before it could be examined by experts, the appeals court found enough evidence that worn ball joints caused the accident. It cited testimony from forensic automotive and accident reconstruction experts.
A lawyer for the plaintiffs, Alan Laskin of
Sacramento, says the lesson for dealers is "listen to your customers when they say there's a
problem" and don't put their safety at risk.
Dealership lawyer Douglas MacKay, of Rancho Cordova, Calif., said he wasn't authorized
to discuss the case.

Judge lets ex-service
adviser's suit against Vt.
dealership group go forward
A federal judge threw out a former service adviser's negligence claim against a dealership
group. But the case will proceed on related
claims of discrimination and emotional distress.
The ex-adviser, Donald Connolly, alleges in
a lawsuit that a female coworker subjected
him to "regular, graphic descriptions of her

PAGE 8

APRIL 2018

sexual interests and preferred sexual acts; sexual questions about (Connolly); stories about
other employees' sex acts; aggressive sexual
advances and demands; and other sexual harassment."
Connolly said he told his supervisor at Alderman's Toyota in Rutland, Vt., about the
problem and requested help, but claimed he
was warned he might be fired if he complained directly to the dealer.
He was transferred to a Kia dealership operated by Alderman's Auto Group, but the sexual harassment continued and Connolly was
later fired after three years with the company,
the suit alleges.
Connolly's lawsuit also claims the group
failed to properly train managers and personnel to report and respond appropriately to
workplace sexual harassment, and negligently retained employees whose behavior they
knew or should have known would put
co-workers at risk. It also accused the dealership group of negligently responding to Connolly's complaints.
The dealership group denies wrongdoing
and said it fired Connelly based on poor job
performance. A lawyer representing the group,
F. David Harlow of Brattleboro, Vt., said: "We
look forward to defending this case in court."
U.S. District Judge Christina Reiss held that
Connolly's negligence claim is barred by state
workers' compensation and fair employment
practices laws. Workers' compensation is the
"exclusive remedy for negligence-based
harms in the workplace," Reiss wrote. She said
the anti-discrimination law provides a remedy for on-the-job sexual harassment and retaliatory discharge.
Connolly's lawyer, John Stasny of Manchester Center, Vt., said that even without the negligence claim, his client would be entitled to
the same damages if he wins at trial.

Dealership loses suit
over contract for service
workers' uniforms
A dealership's service manager had the authority to sign a binding contract for uniform
services, the Ohio Court of Appeals ruled. The
court upheld a $21,394 award against Findlay
Chrysler-Dodge-Jeep-Ram won by Cintas
Corp., which supplies custom uniforms to
businesses.
The court said the service manager, Justin
Lobdell, told a Cintas sales representative that
the dealership had a contract with another
company for towels, mats and rugs, but want-

ed a new style of uniform from Cintas. Lobdell
signed a five-year contract and ordered "specialized Mopar shirts" for employees.
The dealership canceled the agreement after the other company threatened to sue, the
decision said. Cintas successfully sued for
breach of contract in the Hancock County
Court of Common Pleas.
The appeals court rejected the dealership's
argument that Lobdell had no authority to
sign contracts, because he signed warranty
claims and contracts related to "day-to-day
operations, such as the purchase of oil."
Cintas lawyer Michael Clawson says the
damages were a "pre-agreed amount which
essentially compensates Cintas for its losses."
The case has lessons for dealers, says lawyer
Ian Weber, who represents the dealership.
"Have your attorney review any and all contracts signed by the dealership," Weber says. "Also, be very cautious about having your employees sign contracts that could bind the business."

EEOC says Mazda store
discriminated against
deaf detailer applicant
The U.S. Equal Employment Opportunity
Commission is suing a Hawaii dealership over
alleged discrimination in rejecting a deaf applicant for an entry-level position as a detailer.
The government's suit, under the Americans
with Disabilities Act, accuses Cutter Mazda of
Honolulu of discrimination based on Ryan Vicari's "actual disability" and "perceived disability." It seeks lost pay, compensation for
emotional pain, and punitive damages on behalf of Vicari, who is deaf but reads lips.
The suit says Vicari's grandmother accompanied him to an interview as his interpreter,
but Cutter Mazda's "interviewing manager
immediately stated they could not hire him
because he was deaf and abruptly ended the
interview."
In earlier litigation, the store denied discrimination and said it had no detailer positions available when Vicari applied. The store
said it considered him for an opening for a
service lot attendant, but he was unqualified
because the job "requires constant communication with other employees via two-way radio."
The EEOC said it tried to resolve the dispute
informally before suing. The dealership's attorney did not respond to a request for comment.
---- Eric Freedman
foj@autonews.com

Table of Contents for the Digital Edition of Fixed Ops Journal - April 2018