Detroit's deception: defective conversion vans.

Consumers purchase tens of thousands of conversion vans each year. They are lured by luxurious features that transform the vehicles into "motor homes"--a designation that suggests all the comfort and safety of the driver's living room.

Omitted from Detroit's sleek sales literature, however, is a dark reality: Many conversion vans are dangerously uncrashworthy. They present a serious risk of ejection and death in rollover accidents.

The principal danger is created during the conversion process when the original welded steel roof is removed. Full-size passenger vans--Chevrolet G-vans, GMC Vandura, Ford Econoline, and Dodge Ram--leave the factory with steel roof panels and roof supports welded to the vehicle frame. Conversion companies cut out the steel roof panel and roof supports and install fiberglass-only raised roof structures to increase passenger headroom.

Remarkably, the converters attach the fiberglass roofs with a series of sheet metal screws that are spaced around the van roof perimeter. The automotive industry has not used screws to attach roofs to vehicles since 1914.(1)

The conversion van roof provides virtually no crash protection during a rollover. Unlike steel, which can bend and stretch under pressure, fiberglass fractures when it strikes a road surface. In many conversion van rollover accidents, the entire roof simply pops off, because the screws either pull through the fiberglass or shear off.

This destruction of roof safety is part of a delivery system that is financed and controlled by the original vehicle manufacturers. They select, control, and finance converter "partners." Then the manufacturers market and promote the sale of the defective vans through their authorized retail dealerships.

This is done with the manufacturers' full knowledge of the danger, yet with no warning to the consumer. Instead of trying to protect the public, the manufacturers conceal the danger by advertising the vans as "factory safe." To date, furthermore, government automotive safety oversight has ignored this issue.

This article explores the relationship between the major auto manufacturers and their conversion company partners, the role of original manufacturers in marketing and distributing the vans, and the manufacturers' liability for harm caused by conversion van design defects.

Manufacturing dangers

Typically, the "final stage manufacturer" who does the conversion has no significant automotive engineering or crashworthiness expertise. In addition to introducing the danger of fiberglass roofing and attachment screws, the converter enlargeswindow openings, in some cases all the way to the floorboards, which increases the likelihood of ejection during a collision. Also, neither the original manufacturers nor the converters use bonded laminated glass in side or rear windows to reduce the risk of ejection of the driver or passengers.

The danger posed by the raised roof is especially great in view of the well-known fact that a high percentage of van passengers travel unbelted. According to one government study, 83 percent of them do not wear seat belts.(2)

These statistics are not surprising in view of the array of options offered in conversion vans. These include upholstered lounge chairs, beds, televisions, bookcases, and refrigerators. These features transform the vehicle interior into a homelike setting where passengers are encouraged to walk around while traveling or to ignore their seat belts while seated.

The safety issues raised by conversion vans were recently aired in a wrongful death action. On July 19,1996, a jury in Florence, South Carolina, returned a verdict finding General Motors negligent in connection with the deaths of two children who had been ejected from a converted Chevroletvan when its raised fiberglass roof separated from the vehicle during a rollover.(3) At the time of the accident, the children were sleeping on a "travel bed" that had replaced a rear seat. The verdict was the first in the nation holding an auto manufacturer liable for design and structural defects introduced by a member of its approved converter program.

The case was not, however, the first time that a fiberglass screwed-on roof separated during a rollover, ejecting or killing one or more passengers. These roof failures, and their attendant products liability litigation, have repeatedly placed auto manufacturers and conversion companies on notice of the defect. Yet, the conversion van remains an orphan of automotive safety.

Distribution system

The South Carolina trial illustrated the depth of manufacturer direction and control of the van conversion process. At least by 1980, General Motors had established a marketing program designed to increase sales of its full-size Chevrolet passenger van (G-van) by delivering increased numbers of conversion vans to dealership showrooms.(4) The program was supervised by an organization known as the Chevrolet Special Vehicles Department.

GM selected van conversion companies to be part of its system and entered into written agreements to provide them a continuous inventory of G-vans that could be converted promptly to fill dealer orders. Most of the vans that were shipped to converters were incomplete vehicles, without seats or interior finish.

By at least 1984, Chevrolet annually mailed a directory of selected van conversion companies to its retail dealers. These directories, initially known as the Silver Book and later as the Chevrolet Van Conversion and RV/ Specialty Bailment Director, contained marketing pieces from approved converters that displayed raised fiberglass roof models. These directories often were accompanied by GM marketing materials that encouraged its dealers to sell "custom roof" vans.

Through 1987, the program was called the special vehicles "bailment pool," after the practice of shipping vans directly to approved conversion companies without transferring ownership to them. By 1988, the program had been renamed the Chevrolet Quality Approved Converter Program, which Chevrolet described as a "world class delivery system." It consisted of General Motors, the bailment pool conversion team, and General Motors dealers "working together . . . to bring world class . . . recreational vehicles to market . . . to increase our mutual sales and profits." At this time, the number of conversion companies approved for Chevrolet's marketing program was expanded from 60 to 300.

From the beginning of this marketing program, GM selected converters solely on financial criteria--companies had to have adequate credit to protect GM from financial loss. Engineering experience and skill were not criteria, and GM did not investigate the automotive engineering abilities or expertise of pool members.

GM executives testifying in the South Carolina case admitted that

* GM never investigated or evaluated the safety or crashworthiness of roof modifications made by its approved converters.

* No one at GM tried to determine if removal of the original welded steel roof and its substitution by a fiberglass roof created a serious risk of injury or death in a rollover accident.

* No crash or other testing was performed by GM on the raised fiberglass roofs.

* The company had no idea whether any of its approved converters did any testing.

The executives admitted they knew that the original welded steel roofs were being replaced with fiberglass roofs attached with sheet metal screws.

The same executives denied that GM had considered the risk associated with destroying the factory-welded steel roof. The chief engineer for the G-van testified, however, that a fiberglass roof attached by sheet metal screws "would not be [his] choice" for a passenger van.

A special engineering group was set up at GM Truck in 1993 to monitor conversion company processes, but no attention has been given to the hazard created by removing the original steel roof and using a fiberglass replacement.

Manufacturer liability

Auto makers' liability for the injuries and deaths that have resulted from separation of fiberglass roofs in rollover accidents is based primarily on traditional negligence and strict products liability causes of action, including failure to ware.

In jurisdictions that follow the Restatement (Second) of Torts [sections]402A, which imposes strict liability for the sale of "any product in a defective condition unreasonably dangerous to the user or consumer," the test of whether a product is defective when sold is whether it is unreasonably dangerous given the circumstances that will foreseeably attend its use. Applying this test, the prevailing rule in the United States is that a manufacturer may be held liable for failing to guard or warn against a hazard created by a foreseeable later modification of its product by a third party.(5)

In Brown v. United States Stove Co., the New Jersey Supreme Court expressed the policy considerations that impose this duty:

[T]he principle of "objective foreseeability"

comports with a basic theme of products

liability, namely, that the condition of the

product, rather than the conduct of the

manufacturer, is determinative of ultimate

responsibility for product failure causing

accidental injuries.... For that reason,

"objective foreseeability" does not affix 

responsibility for future events that are only

theoretically, remotely, or just possibly

foreseeable, or even simply subjectively

foreseen by a particular manufacturer. Rather,

the doctrine applies to those future

occurrences that, in light of the general

experience within the industry when the

product was manufactured, objectively and

reasonably could have been anticipated.(6)

Brown also notes the restrictive view, followed in New York, that a product is not defective for failure to warn or guard against modifications by third parties even if foreseeable. Only a handful of jurisdictions have adopted this view, and not without qualification.(7) For example, the Missouri Court of Appeals has confined its application to cases where the original manufacturer is totally disassociated with the later modification.(8)

Failure to warn of dangers that foreseeable modifications of a product create may also constitute negligence. A manufacturer may be held liable if the evidence establishes a negligent failure to warn of the "dangerous consequences resulting from a foreseeable alteration or modification of a product."(9)

The prevailing view is that this duty is a continuing one, imposing on the manufacturer a duty to warn if its knowledge of the danger or defect is acquired after the modification is completed.(10) A leading case on this point explains the policy behind this duty:

A post-sale duty to warn promotes a continuous

flow of information from the more

knowledgeable manufacturer to the industrial purchaser

and all foreseeable users. Such a flow of information

prevents injuries caused by limited

knowledge of products, and the duty to convey

this information provides the manufacturer

even more encouragement to monitor closely

the accident history of its products,

thereby fostering speedier improvements in the

relevant industry.(11)

Auto makers' role in the conversion process may also expose them to negligence liability under the crashworthiness doctrine. Almost every jurisdiction in the country imposes on these manufacturers the duty to design, manufacture, and sell vehicles that provide a reasonable degree of occupant protection in foreseeable highway crashes.(12)

A breach of that duty is negligence. It may thus be argued that the significant role auto manufacturers play in creating, supporting, and directing the conversion van delivery system is a direct violation of their duty to sell and distribute crashworthy vehicles.

The original van manufacturers are not bystanders. Their role in the conversion van distribution system does not stop at the assembly plant door. They play a major role in facilitating and encouraging the sale of a dangerous product through their retail dealerships.

Indeed, in the GM system, the company actually sells the vans to its dealers after conversion is completed. Thus, the original manufacturer cannot avoid duty of care simply because it selected another company to alter the product and increase market appeal before distributing the product for final sale.

Traditional negligence analysis also applies. The first factor in the negligence equation is the likelihood that an actor's conduct will injure others.(13) A legal duty of reasonable care arises whenever an endeavor creates a generalized and foreseeable risk of harm to others.(14)

Duty is ultimately the product of affirmative action that creates a zone of risk:

Where a defendant s conduct creates a foreseeable

zone of risk, the law generally will recognize

a duty placed upon defendant either to

lessen the risk or see that sufficient

precautions are taken to protect others from the

harm that the risk poses.... Thus, as the risk grows

greater, so does the duty, because the risk

to be perceived defines the duty that must be

undertaken.(15)

Auto makers have actively created a serious risk of harm by establishing and implementing a system of converting, marketing, and delivering vans that lack the safety of factory-built vehicles. The manufacturers thereby created a duty to act reasonably in light of the risk. And they have breached that duty by promoting the sale of defective vehicles and failing to prevent destruction of safety features built in at the factory.

Many courts that have addressed manufacturer liability in the context of multistage manufacturing processes have adopted a specialized application of negligence principles in assessing duty. Under this application, first articulated by the Third Circuit in Verge v. Ford Motor Co., responsibility for the safety of the completed product is determined under three criteria (16)

* Trade custom. At what stage would the defect nominally be cured?

* Expertise of production units. Which party is best acquainted with the design problems of the product as modified?

* Practicality. Which party is in a better position to remedy warn of the defect?

The foreseeability of a dangerous misuse or modification by the intermediary remains a salient concern in weighing these factors.(17)

In the context of conversion van distribution systems created by vehicle manufacturers, applying the Verge analysis should result in a finding that the manufacturer is responsible. Especially in cases involving injuries resulting from fiberglass roof failure, the manufacturer has the most knowledge, the most resources, the most control, and the best opportunity to stop distribution of uncrashworthy vans.

Manufacturers do not enjoy immunity from liability simply because others in the chain of distribution repackage or reformulate a product. A leading case on this point is Hunnings v. Texaco, Inc.(18)

A child died after ingesting mineral spirits packaged in a used milk container sold at a hardware store. The parents sued the bulk manufacturers and distributors, alleging they were negligent in marketing the product and allowing Ace Hardware to sell the liquid in a milk container that carried no warning of the hazard. In upholding the sufficiency of the negligence allegation, the court observed that

the negligence claim is not confined to a

failure to warn of the hazards of

ingesting of mineral spirits, but on the

defendants negligent marketing of the

product; that is, their failure to take

reasonable precautions" in keeping with

their knowledge of the retailer's

conduct. Taking reasonable precautions

may or may not include the

dissemination of such warnings. It could

also encompass instructing downstream

distributors to notify retailers to

discontinue the practice of packaging

mineral spirits in milk containers . . . or

curtailing business with customers who

were known to distribute the product to

errant retailers.... We need not decide

what might constitute reasonable

precautions commensurate with the

circumstances of this case. We

emphasize only that this is not a pure

failure-to-warn case.(19)

Likewise, given manufacturers' knowledge that it is customary for approved converter companies to replace steel roofs with raised fiberglass roofs, their active role in marketing conversion vans may provide a sound basis to impose negligence liability.

Manufacturer liability for the negligent marketing of conversion vans through a dealer network may also be based on the "stream of commerce" approach to products liability. This doctrine imposes liability on all parties who are knowing participants in the "overall producing and marketing enterprise."

Under this approach, it is the defendant's "participatory connection, for personal profit or other benefit, with the injury producing product and with the enterprise that created consumer demand for and reliance upon the product that calls for the imposition of liability."(20) Detroit's conversion van sales and marketing networks plainly satisfy the criteria under the stream of commerce doctrine.

Conversion van owners and passengers are victims of deception. The danger posed has been with held and concealed. Until the federal government acts to create effective federal motor vehicle safety performance standards for these vehicles, their uncrashworthiness will likely continue.

At present, the only effective way to combat this danger is by increasing public awareness through crashworthiness litigation against auto makers and conversion van companies that sell these dangerous products.

Notes

(1.) Anthony J. Yanik, The First 100 Years of Transportation Safety: Part 1, AUTOMOTIVE ENGINEERING, Jan. 1996.

(2.) NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION, U.S. DEP'T OF TRANSPORTATION, SAFETY BELT PROBLEMS: NHTSAIN-HOUSE SURVEY, HS-803-575 (Aug. 1978).

(3.) Wright v. General Motors Corp., No. 94-CP 21-001092 (S.C., Florence County Cir. Ct., July 19, 1996).

(4.) The same program was set up by GM at its GMC Division for marketing the GMC Vandura.

(5.) See, e.g., Brown v. United States Stove Co., 484 A.2d 1234 (N.J. 1984). See also Saupitty v. Yazoo Mfg. Co., 726 E2d 657 (10th Cir. 1984); Wessinger v. Vetter Corp., 716 F. Supp. 537 (D. Kan. 1989).

(6.) 484A.2d 1234,1241.

(7.) See, e.g., Cox v. General Motors Corp., 514 S.W.2d 197 (Ky. Ct. App. 1974).

(8.) See, e.g., Hill v. General Motors Corp., 637 S.W.2d 382, 385 n.2 (Mo. Ct. App. 1982) ("We do not decide the case where the manufacturer invites, encourages, or participates in the modification.").

(9.) Oanes v. Westgo, Inc., 476 N.W.2d 248, 252 (N.D. 1991). See Livingston v. Noland Corp., 362 S.E.2d 16,18 (S.C. 1987); RESTATEMENT (SECOND) OF TORTS [section]388 (1974).

(10.) See Thy v. Otis Elevator Co., 713 E2d 1040, 1045-46 (4th Cir. 1983).

(11.) McAlpin v. Leeds & Northrup Co., 912 E Supp. 207,211 (W.D.Va. 1996).

(12.) See, e.g., Mickle v. Blackmon, 166 S.E.2d 173, 192 (S.C. 1969).

(13.) See, e.g., Conway v. O'Brien, 111 E2d 611, 612 (2d Cir. 1940), rev 'd on other grounds, 3 12 U.S. 492 (1941).

(14.) McCain v. Florida Power Corp., 593 So. 2d 500, 503 (Flat 1992).

(15.) Id. See also RESTATEMENT (SECOND) OF TORTS [section]285 (1974).

(16.) 581 E2d 384, 387 (3d Cir. 1978).

(17.) See, e.g., Ogletree v. Navistar Int'l Transp. Corp., 390 S.E.2d 61 (Ga. Ct. App. 1989).

(18.) 29 E3d 1480 (11th Cir. 1994).

(19.) Id at 1487 (citations omitted).

(20.) Gunderson v. Sani-Kem Corp., 674 S.W.2d 665, 668 (Mo. Ct. App. 1984). See also Gehl Bros. Mfg. Co. v. Superior Ct., 22 Cal Rptr. 19 (Ct. App. 1988); Linkv. Sun Oil Co., 312 N.E.2d 126, 130 (Inc. Ct.App. 1974).

James R. Hubbard and Edward M. Ricci practice together at Ricci, Hubbard, Leopold & Frankel in West Palm Beach, Florida.