MIAMI (Florida Record) – A would-be class action against Ford Motor Company claiming its 2016 Ford Mustang Shelby GT350 overheats and goes into "limp mode" on the interstate or racetrack has one fewer plaintiff and a fewer less counts but remains alive.
In a 31-page order issued July 12, U.S. District Judge Federico A. Moreno of the Southern District of Florida dismissed one of 58 counts against Ford in reference to one named plaintiff, Jacques Rimokh. Ford successfully argued that Rimokh's claim under the Song-Beverly Consumer Warranty Act and the related Magnusson Moss Warranty Act claims had to be dismissed because Rimokh did not purchase his Shelby GT350 Mustangs in California.
Moreno also agreed to dismiss four other counts with prejudice and two other counts were dismissed as withdrawn. "Ford's motion to dismiss the remaining counts is denied," Moreno said in his order.
Moreno also gave Ford until Aug. 10 to file an answer.
Twenty-two named plaintiffs, including lead named plaintiffs George and Diana Tershakovec, from 11 states, including Florida, are track enthusiasts who suffered severe cases of buyers remorse after purchasing the Base and Technology Package models of the Shelby GT350 Mustang. Plaintiffs allege they were taken in by selling points about the muscle car that it offered "track-capable performance" and was "an all-day track car that's also street legal," said the first amended complaint filed in May 2017. "This is what Ford told potential track-enthusiast customers to entice them to buy its 2016 Shelby GT350 Mustang," the first amended complaint said. "But Shelby GT350 Mustangs were far from the 'all-day track cars' that Ford promised. In fact, for more than 70 percent of all owners, they proved to be unusable on the track. When a Shelby GT350 Mustang driver took Ford’s flagship track-capable car to the track, he or she learned that in 15 minutes or less, the transmission and rear differential would overheat, causing the car to go into limp mode at drastically reduced speed and power – an obviously dangerous event when surrounded by speeding cars."
The vehicle overheats and goes into limp mode "without warning" because Ford equipped it with defective powertrain systems with inadequate transmission and rear differentials, according to the first amended complaint. "These defects manifest not only in the track ready powertrain system's inability to withstand the high-performance demands of racetrack use, but also create dangerous conditions on public roadways when the Shelby GT350s are being operated under normal driving conditions," the complaint said.
The auto company still faces dozens of allegations that Moreno did not dismiss. Among those counts, Moreno did not buy into Ford's argument that allegations of unjust enrichment should be dismissed because an express contract in the Mustang purchases and that plaintiffs have adequate legal remedy outside the court. Moreno countered that the vehicles now have "diminished value," which means "Ford has reaped profits in excess of what should have been earned for the sale of its allegedly defective 2016 Shelby GT350 Base and Technology Packages.
"Because unjust enrichment is available only when there is no adequate remedy at law, and the court has declined to dismiss the express warranty claims at the motion to dismiss stage, the court will determine at a later time whether plaintiffs' remedy at law is adequate," Moreno continued in his order. "Accordingly, because the issue of whether the express warranty applies in this case is still in dispute, Ford's motion is denied as to the unjust enrichment claims."