CHARLESTON – Daewoo auto buyers who joined a Kanawha County class action against C&O Motors sing a different tune from the class representative.
While original plaintiff Darryl Smith accuses C&O of hiding the truth about Daewoo, new plaintiffs swear that C&O lied.
Testimony of new plaintiffs in depositions has changed the claim from concealment to misrepresentation, according to C&O attorneys at the Swartz law firm.
They accuse plaintiff attorneys of misleading Circuit Judge Paul Zakaib.
Allyson Griffith of the Swartz firm asked Zakaib May 5 to decertify a class of Daewoo buyers that he certified last year.
Griffith wrote, "It is universally recognized that a class action may not be maintained for misrepresentation fraud."
She wrote, "Misrepresentation and reliance cases need to be tried one at a time."
She also moved to continue the trial, which Zakaib has set for July 17.
In response May 10, plaintiff attorney Harry F. Bell Jr., of Bell and Bands, wrote that the motions were totally devoid of merit.
Bell wrote that the defense filed the motions to delay trial for a fifth time.
He wrote that the defense knew Smith would be deployed to military duty in the fall.
He wrote, "... it is abundantly clear that defendants intend to attempt to delay trial in this action until such time as plaintiff returns from active military duty."
Zakaib set a June 23 hearing on the motions.
C&O Motors sold Daewoo vehicles from Korea for six months in 2002.
When Daewoo went bankrupt, General Motors bought its core assets. GM did not buy the Daewoo America subsidiary, which provided warranties.
Bell filed suit for Smith on July 3, 2002, claiming C&O concealed or failed to disclose Daewoo's problems.
Bell proposed a class action for at least 1,000 persons.
The dealer answered that it honored Daewoo warranty claims. It noted that it sold 91 Daewoos, not a thousand.
At a hearing in February 2005, Zakaib said he would certify a class action. His written order followed in October.
He brought in mediator Bob Allen, who held a settlement conference in November.
Class action notices went by mail to the last known address of each buyer.
Notices ran in two issues of the Charleston Sunday Gazette-Mail, at a cost of $2,700. The notices said class members could opt out by Dec. 31.
Jeanette Jean Tackett of Belle, Gene Delfine of St. Albans and Carolyn Heath of Wheeling opted out.
Mediator Allen brought the two sides together April 12. In a power point presentation, Daewoo buyers described their experiences at C&O.
On the spot, mediation collapsed.
Allen threw in the towel by letter to Zakaib April 14.
C&O attorney Mary Jo Swartz sent notice the same day that C&O would depose Smith and 12 other plaintiffs on April 26 and 27.
In deposition, plaintiff Mitchell Balaban said, "I believe, I personally, that I was lied to ... He said it would be serviced at any Chevy dealership anywhere in America."
Plaintiff Paul Cozart said, "We did discuss the warranty as General Motors being responsible for it."
Plaintiff Sharon Milan said, "They said that GM was going to take over the parts. There wouldn't be any problem."
Plaintiff Jena Webb said, "It was fraud, what they did ... They advertised and then they sold them fraudulently. They lied to us."
Plaintiff Jack Stone said, "He said Daewoo is not in bankruptcy. He said General Motors is going to take Daewoo over."
The defense did not depose Smith. Bell asked Zakaib to block his deposition, arguing that C & O's original attorney deposed him in 2003.
C&O attorney Mark Swartz replied, "More than two and a half years have now passed. Does Mr. Smith still own his Daewoo? Does he drive it every day?"
He wrote, "Now that the theory of the case has changed, has his story changed?"
Griffith, in her motion to decertify, wrote that at least 25 percent of class members no longer owned Daewoos.
"They cannot now revoke acceptance," she wrote.
She wrote, "The power point presentation turned out to be truly enlightening - although probably not as plaintiff's counsel had intended."